CONCURRING OPINION OF
LEVINSON, J.Because the opinion of the majority has failed to cover adequately a number of important questions raised by this case which were neither briefed nor argued fully, I am constrained to offer a concurring opinion.
I. MOTION FOR ACQUITTAL
A. Functions of Motion for Acquittal.
My primary objection to the majority opinion is that it fails to distinguish between the standard which a trial judge must apply on a motion for acquittal and the standard used on appeal to determine if there is sufficient evi*665dence to support a verdict of guilty. Compare State v. Kekaualua, 50 Haw. 130, 132, 433 P.2d 131, 133 (1967) (appellate review of sufficiency of evidence) with State v. Butler, 51 Haw. 180, 455 P.2d 4 (1969) (review of denial of motion for acquittal). As I shall point out, these two aspects of a criminal proceeding — motion for acquittal and appellate review of the sufficiency of the evidence— are very different. They perform distinct functions in the criminal process and require separate consideration.
We must begin analysis with Rule 29(a) of the Hawaii Rules of Criminal Procedure which governs motions for acquittal. That rule states that the motion for acquittal shall he granted “if the evidence is insufficient to sustain a conviction of such offense or offenses.” (emphasis added) It is obvious that the words of Rule 29(a) offer little guidance to the trial judge who must consider such a motion. Hence policy and experience must be considered in shaping the test which will constitute a legal standard controlling a motion for acquittal. In order to do this, I would first place the motion for acquittal in its proper place in the criminal process.
The motion for acquittal is of utmost importance in a criminal case. It should operate as a screening device to prevent the accused’s case from going to the jury when the prosecution has failed to introduce evidence of a certain quantum from which the jury can find him guilty beyond a reasonable doubt. This power to keep the case from the jury serves (1) to protect the innocent, (2) to keep the pressure on the judge, prosecutor and police to perform their duties in screening out cases not fit for trial, and (3) to maintain the criminal sanction as one of a serious nature which requires higher standards of proof than a civil action. See Goldstein, The State and the Accused: Balance of Advantage in Criminal Procedure, 69 Yale L.J. 1149, 1161-62 (1960). See generally Note, The Motion for Ac*666quittal: A Neglected Safeguard, 70 Yale L.J. 1151 (1961).
A viable test must therefore be commensurate with the trial aspect of the criminal process, at which point it becomes the government’s obligation to prove the accused guilty beyond a reasonable doubt. The majority opinion recognizes that there must be “substantial evidence to support the jury’s verdict of guilty.” That opinion also státés that “[i]t is quite clear that the record contains enough evidence for the jury to infer from the conduct of the defendant that he acted with fraudulent intent.” (emphasis added) This test provides no guidance at all to help trial judges rule on motions for acquittal. How much evidence is “enough evidence”? By what standard can that be judged? What the majority seems to be saying is that a case can go to the jury as long as there is a possible inference of guilt to be derived from substantial evidence however attenuated the inference may be. Whatever merit such a test may have on an appeal which contests the sufficiency of the evidence, different considerations are presented when the trial judge, on the scene in the midst of the trial, is asked to make a ruling whether the quantum of evidence is sufficient to send the case to the jury. He is fully aware of all that has gone on and is peculiarly able to make an educated ruling.
The requirement that the defendant is presumed innocent and must be proven guilty beyond a reasonable doubt should guide us in fashioning a more satisfactory test. While the “presumption of innocence” and the “reasonable doubt” test have never been specifically held to be constitutionally mandated, Hawaii has given them the force of law. HRS § 705-2, cf. State v. Matsuda, 50 Haw. 128, 432 P.2d 888 (1967); Territory v. Young, 37 Haw. 150 (1945): Further, in my opinion the presumption of innocence and the’necessitv for the government to prove an accused guilty beyond á reasonable doubt are constitutionally impelléd *667as “necessary to an Anglo-American regime of ordered liberty.” Duncan v. Louisiana, 391 U.S. 145, 149 n.14 (1968). These safeguards were firmly embedded in English law and have been incorporated into the American system of criminal justice. 9 Wigmore, Evidence § 2497 (3d ed. 1940). It is therefore incumbent upon this court to construct a standard which will serve as an effective screen to keep cases which are objectively susceptible of a reasonable doubt from going to the jury and risking the conviction of the accused in violation of his constitutional rights.
B. Defendant’s Dilemma on Denial of Motion for Acquittal at Close of Prosecution’s Case.
When the motion for acquittal is made at the close of the prosecution^ case, the question is whether the defendant need continue in light of the heavy burden of proof which the.prosecution must sustain and the presumption of innocence which shields the defendant. In order to make these rights of a defendant meaningful, the reviewing court must take only the prosecution’s evidence, giving it full weight, and subject it to judicial scrutiny. Just as the trial court must make its decision at the time that the motion is made, without reserving its ruling,1 the review of a denial of a motion for acquittal made at the close of the prosecution’s case must deal only with the evidence theretofore introduced by the. prosecution.2 Any other procedure would dilute the effectiveness of the motion for acquittal which rule 29(a) of the Hawaii Rules of *668Criminal Procedure allows at the close of the prosecution’s case.
Many courts appear to have applied in criminal cases the civil rule that if a defendant proceeds with his evidence upon the denial of his motion for acquittal, there is an “election” or a “waiver” and upon review the appellate court will consider all the evidence introduced, even that which the defense may have introduced which fills in gaps in the prosecution’s case.3 Such a result in a criminal case is inconsistent with the burden on the prosecution to prove its case beyond a reasonable doubt. It compels the defense to choose between (1) resting its case without presenting any evidence in order to perfect an appeal precisely on the denial of a motion for acquittal at that point, and (2) going forward with its case thereby forfeiting any meaningful review of the prosecution’s discharge of its burden of proof. Such a choice places the defendant over the proverbial barrel and is a dilemma which, in my judgment, the nature of the criminal process and the federal constitution prohibits.
C. Appellate Review of Denial of Motion for Acquittal.
Having determined what evidence is to be . reviewed, I now turn to a consideration of the applicable standard to be used in reviewing that evidence. Some courts have adopted the standard of ultimate persuasion where the judge must be satisfied that the prosecution introduced substantial evidence of the facts which exclude every other hypothesis than that of guilt. At the other end of the spectrum is the rule seemingly adopted by this court that makes no distinction whatsoever between civil and criminal cases. Only “substantial evidence” need be required in *669order to submit the case to the jury. See 2 Wright, Federal Practice and Procedure § 467 (1969). The overwhelming majority of the courts appear to have accepted some form of the test first announced by Judge Prettyman in Curley v. United States, 160 E.2d 229, 232-33 (D.C. cir. 1947) cert. denied 331 U.S. 837 (1947) :
If the evidence is such that reasonable jurymen must necessarily have such a doubt, the judge must require acquittal, because no other result is permissible within the fixed bounds of jury consideration. But if a reasonable mind might fairly have a reasonable doubt or might fairly not have one, the case is for the jury, and the decision is for the jurors to make....
The true rule, therefore, is that a trial judge, in passing upon a motion for directed verdict of acquittal, must determine whether upon the evidence, giving full play to the right of the jury to determine credibility, weigh the evidence, and draw justifiable inferences of fact, a reasonable mind might fairly conclude guilt beyond a reasonable doubt. If he concludes that upon the evidence there must be such a doubt in a reasonable mind, he must grant the motion; or, to state it another way, if there is no evidence upon which a reasonable mind might fairly conclude guilt beyond a reasonable doubt, the motion must be granted. If he concludes that either of the two results, a reasonable doubt or no reasonable doubt, is fairly possible, he must let the jury decide the matter.
See the cases collected in 2 Wright, Federal Practice and Procedure § 467 at 256-57, 257 n.72 (1969).
While falling between the two extremes previously mentioned — i.e., the exclusion of every reasonable hypothesis on the one hand and equating a civil case with a criminal case on the other hand — the text enunciated in Gurley would provide the trial judge with a workable *670standard with which to screen effectively the evidence before it goes to the jury, rather than leaving- it to this court to pass upon with a cold record. Further, in screening the evidence, such a test serves to recognize the “fixed bounds of jury consideration.” This test was recently adopted by the Ninth Circuit in United States v. Nelson, 419 F.2d 1237 (9th cir. 1969). I find the court’s opinion by Judge Browning thorough and very persuasive.
Since the evidence of the defendant’s intent to embezzle the funds was such that “a reasonable mind might fairly conclude guilt beyond a reasonable doubt,” I concur with the result of the. majority opinion, while. recommending that the above rule be adopted by the court.
II. INSTRUCTION TO JURY ON CIRCUMSTANTIAL EVIDENCE
I do not think that a special instruction on circumstantial evidence informing the jury that it is duty-bound to choose the reasonable inference of innocence if two reasonable inferences are possible is constitutionally required. This is in spite of the fact that its origin is well founded in the common law.4 The question is whether the jury is adequately informed of the “proof beyond a reasonable doubt” standard by a general instruction in a case based on circumstantial evidence. If both the general and special instructions are adequate, the question to be decided is which instruction is preferable as a policy matter.
The United States Supreme Court has taught us that a special instruction on circumstantial evidence similar to that asked for by the defendant in this case is both “confusing and incorrect.” Holland v. United States, 348 U.S. 121, 139 (1954).5 As that court recognized, there is very *671little, if any, probative difference between direct and circumstantial evidence. See 1 Wigmore, Evidence §§ 25, 26 (3d ed. 1940). If adequate instructions are given on the reasonable doubt standard, and if the trial judge has been able to screen the evidence on a proper motion for acquittal or on his own initiative, see H.R.Cr.P. Rule 29(a), the failure to give such an instruction is not error.
Finally, Territory v. Honda, 31 Haw. 913, 914, (1931), cited by the majority in support of the trial court’s refusal to allow the special instruction on circumstantial evidence does not fit the facts of this case. In Honda there was direct evidence of assault with intent to rape, hence the necessity for the special instruction on circumstantial evidence was not present.
Having expressed my differences with the majority, I respectfully concur.
Weathers v. United States, 322 F.2d 566 (9th cir. 1963); Jackson v. United States, 250 F.2d 897 (5th cir. 1958); State v. Butler, 51 Haw. 180, 187, 455 P.2d 4, 8 (1969) (concurring opinion).
See Cephus v. United States, 324 F.2d 893 (D.C. cir. 1963) (opinion by Bazelon, C.J. with Wright, J. concurring); see generally, Note, The Motion for Acquittal: A Neglected Safeguard, 70 Yale L.J. 1151 (1961); 8 Moore, Federal Practice ¶ 29.05 (2d ed. 1969).
See Note, supra, note 2 at 1152, n.9 (citing cases); compare Low v. Honolulu Rapid Transit, 50 Haw. 582, 445 P.2d 372 (1968) for the traditional civil rule in a civil case.
This is the famous Hodge’s Case instruction. 2 Lewin 227, 168 Eng. Rep. 1136 (1838).
See also United States v. Nelson, 419 F.2d 1237 (9th cir. 1969).