concurring,
in which GUTHRIE, Chief Justice, joins.I concur in all that is said in the majority opinion.
I am persuaded that the circumstantial evidence instruction which was given in this case, while unquestionably the object of prior approval by this Court,1 is fundamentally erroneous in the light of Cosco v. State, Wyo., 521 P.2d 1345 (1974). A perusal of the Wyoming cases relating to this instruction demonstrates that it had its genesis in the context of a complete explanation of the term “reasonable doubt.” In Cosco v. State, supra, the Court gave an instruction defining reasonable doubt which resulted in a reversal for a new trial “with directions not to give the instruction defining reasonable doubt or any other similar instruction.” Cosco v. State, supra, at p. 1346.
*864Therefore, in Wyoming we no longer define “reasonable doubt,” but in a case involving reliance upon circumstantial evidence only by the state we do advise the jury, in effect, that to find the defendant guilty beyond a reasonable doubt, “the circumstances when considered together must point clearly and conclusively to the guilt of [the defendant] and exclude every reasonable hypothesis other than that of guilt.” I am compelled to view this language as an “instruction defining reasonable doubt or any other similar instruction” within the purview of the opinion in Cosco v. State, supra. I further am compelled to suggest that the giving of such an instruction is clear and fundamental error, and the cases approving it no longer should be followed in this jurisdiction. Instead, the form of instruction should be modified to encompass the explanation set forth in Holland v. United States, 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150 (1954), or perhaps language similar to that found in People v. Bennett, 183 Colo. 125, 515 P.2d 466, 469 (1973). As given here the instruction violates the spirit and perhaps the letter of a rule espoused in territorial days that the state is not required to prove guilt beyond a possible doubt. Cornish v. Territory, 3 Wyo. 95, 3 P. 793 (1884), and Horn v. State, 12 Wyo. 80, 73 P. 705 (1903). Establishing guilt “conclusively” is very like proving it beyond a possible doubt.
. State v. Paulas, 74 Wyo. 269, 286 P.2d 1041 (1955); Thompson v. State, 41 Wyo. 72, 283 P. 151 (1929); Gardner v. State, 27 Wyo. 316, 196 P. 750, 15 A.L.R. 1040 (1920).