dissenting:
I respectfully dissent on the grounds that the evidence in this case is sufficiently strong to present a prima facie case of guilt. The State proved that the defendant had possession of the murder weapon both before and after the commission of the murder.
The preeminent authority for holding the evidence here sufficient is the California case of People v. Tolbert, 76 Cal. Rptr. 445, 452 P.2d 661, (1969) cert. denied, 406 U.S. 971 (1972) where the defendant was convicted of murder based primarily upon his possession of the mur*638der weapon. While in Tolbert the defendant lived next door to the victim and was seen in the neighborhood, nonetheless no eye witness placed the defendant at the scene of the crime and his presence on his own front porch near the time of the murder was not inconsistent with innocence. In Tolbert the only probative evidence was possession of the murder weapon 6 days after the murder.1
The proper standard of review in California is no different from our own; the California court applied it in Tolbert by saying:
The rule on review of the sufficiency of the evidence is that the weight of the evidence is for the jury to determine in the first instance, and the trial court after the verdict in the second instance. If, as in the present case, the circumstances reasonably justify the verdict, an opinion of this court that those circumstances might also reasonably be reconciled with the innocence of the defendant will not warrant interference with the determination of the jury. 76 Cal. Rptr. at 450, 452 P.2d at 666.
The evidence in the case before us is even stronger than it was in Tolbert; here we have definite proof that the defendant had the weapon in his possession both before and after the murder. The record reveals that four witnesses for the prosecution stated that they had seen the defendant with a gun, and three of the witnesses identified the murder weapon as the gun they recalled. While the majority contends that the leading witness for the prosecution, Lloyd Buby, “recanted” his testimony that the defendant had the weapon before the murder, upon *639closer examination the testimony demonstrates that the witness only qualified his identification to the extent that he said that the gun admitted into evidence had more rust on it than the weapon he remembered seeing in the defendant’s possession. His testimony was still that he had observed that the defendant had an uncommon looking gun before the murder which looked like the murder weapon presented at trial. The witness, who lived and worked with the defendant for a while, testified that on one occasion he stole the pistol in question because he feared the defendant might use it against him. His testimony demonstrates that he had ample opportunity to study and to become familiar with the weapon while it was in his possession.2
*640The murder weapon itself was not a commonplace, everyday 38 caliber pistol. Lloyd Buby testified that he had seen other .38s but he had never seen one exactly like the murder weapon. This particular .38 had several distinctive features: chrome or liquid plating, a black handle, and a loading mechanism similar to that used *641for a shotgun, in that it split apart. All of these factors combined to make this a memorable weapon, not just a typical .88 caliber pistol. Once the ownership of the pistol before and after the murder had been proven, the State had established a prima facie case.
*642We must concede at the outset that any time a conviction is procured on circumstantial evidence there is a possibility of error. Some circumstantial evidence is stronger than other circumstantial evidence; nonetheless, a conviction is seldom procured on evidence sufficiently strong to be beyond all possibility of error. Con*643sequently, a reviewing court must make some subjective determination of the actual probability of error first, and then proceed to work backward from its conclusion about probabilities to the application of some general rule about sufficiency. This determination is inherently a subjective process; regardless of what we say to the contrary, an appellate court will always reverse where it strongly disagrees with the conclusion of the jury regardless of the technique it selects to disguise this simple process. See, for example, Cannellas v. McKenzie, _W. Va._, 236 S.E.2d 327 (1977).
There are thousands of random results throughout the American jurisdictions which attempt to apply the simple standard of review quoted above from the California court in Tolbert, supra with little attempt to illuminate the reasoning process by which courts conclude that certain evidence satisfies the rule while other evidence does not. What circumstantial evidence excludes all reasonable hypotheses of innocence? I suspect that there is such a paucity of illumination on the subject because an honest analysis brings a reviewing court squarely into an apparent conflict with Griffin v. California, 380 U.S. 609 (1965) which holds that no unfavorable inference máy be drawn from the defendant’s failure to testify. Nonetheless, it is possible to explain how courts have applied the sufficiency standard only with reference to the ease or difficulty which the defendant would have in rebutting the circumstantial evidence against him. The *644whole rationale for appellate review of sufficiency is to foreclose defendants from becoming victims of circumstances in a very literal sense. Why should defendants who have the peculiar ability to rebut apparently prima facie cases with evidence which is within their own knowledge be accorded the same reluctance to convict as those who are totally at the mercy of the sufficiency test?
Where circumstantial evidence is incapable of being rebutted by the defendant courts should apply a significantly higher standard for determining sufficiency than in cases where the defendant can easily rebut the circumstantial evidence. In the case before us only the defendant knew the history of his weapon; if it were not in his possession at the time of the murder then he and he alone had the capacity to demonstrate its whereabouts.
Even while paying sincere deference to the holding of Griffin v. California, supra, that neither comment by prosecution nor instructions to the jury may permit the inference that the silence of the accused is evidence of guilt, it is not inconsistent or illogical to recognize a certain elasticity in the standard for evaluating sufficiency of evidence based exclusively upon a high resolve to assure that no innocent defendant be unjustly convicted. If the gun had been found in the possession of the defendant twenty minutes after the robbery would that have been sufficient? One day? One week? What if in addition to the murder weapon the police had discovered clothes in the possession of the defendant which were similar to those worn by the assailant? If it is agreed that a conviction could be had in any of these hypothetical examples, it must then be conceded that sufficiency is basically predicated upon probabilities and is not absolute. Even in a case where the defendant had the gun and similar clothes twenty minutes after the murder there would not be proof beyond all possibility of mistake. The very recognition of a standard of review based on probabilities leads ineluctably to a recognition of the legitimacy of elasticity in that standard. Appel*645late court relief for insufficiency should be predicated upon the ease or difficulty which the defendant would have in rebutting the circumstantial evidence against him.
Where, for example, a defendant is convicted upon evidence which shows that he was driving a motor vehicle similar to the one in which an assailant fled, was wearing clothes similar to those worn by the assailant, and was close to the scene of the crime within a few hours of its perpetration, the standard should be higher than in the case before us because all of the evidence in our hypothetical example is consistent with innocence and there is absolutely no evidence other than alibi which the defendant can produce to rebut the inferences to be drawn from his unlucky circumstances. Absent an alibi the defendant may be a victim and there is nothing which he could reasonably be expected to know which would exonerate him or cast any light on the real perpetrator. In the case before us, however, the defendant knows everything; he and he alone can explain where his weapon was, whether it was lost, whether it was stolen, how he came to repossess it, and possibly who the real perpetrator is.
The majority is wrong to gainsay the conclusions of the trial judge and jury in this case. The unexplained possession of a murder weapon both before and after the murder is sufficient circumstantial evidence to make out a prima facie case. The use of the term “unexplained” possession does not magically invoke the spectre of Griffin because at some point the evidence will be so compelling that the defendant must take the stand. Would the defendant need to take the stand if he had been caught with the weapon five minutes after the murder? What constitutes a prima facie case is always a subjective determination so that regardless of the threshold of sufficiency for a particular judge, the unexplained existence of certain circumstances when that particular threshold is met will cause the defendant to take the stand or suffer a conviction. Our fear of appearing cava*646lier about the rights of defendants to require the State to prove its case leads courts universally to eschew any analysis of the ease or difficulty with which a defendant can rebut circumstantial evidence lest we run afoul of Griffin, swpra, yet this unarticulated consideration must lurk in the dark recesses of every judge’s mind. The difficulty with unarticulated criteria is that they ultimately cloud the thinking process. While appellate judges may know the distinction between what they do and what they say they do, trial judges cannot be expected to be mind readers.
The results of most cases on sufficiency stand for the proposition that defendants are entitled to more protection in the form of appellate review of sufficiency when circumstances are beyond their power of explanation than when the incriminating circumstances can be easily explained. To accept any other view will either lead to inadequate protection for those unlucky enough to be victims of circumstances by reciting a mechanical rule which leaves everything to the discretion of the jury as long as there is “some evidence” or, alternatively, will lead to the freeing of the obviously guilty because we are unwilling to exercise our minds to a sufficient extent to reconcile the defendant’s right to remain silent with the related problem of a proper standard for appellate review of sufficiency which takes account of relative degrees of likelihood of erroneous convictions dependent on the nature of the circumstantial evidence.
In this regard it would appear that the mere possession of a murder weapon two and a half months after the murder, i.e. November 4, 1974 to January 27, 1975 would not constitute a prima facie case because it could not logically be concluded that the defendant would have it in his power to rebut the evidence to show where the gun was before he bought it; however, possession both before and after the murder would lead reasonable minds to conclude that if it were not the defendant’s gun and the defendant had not used it to commit the murder, the likelihood of an erroneous conviction would *647be véry small as the defendant had it exclusively in his power to show the jury where the gun was at the time of the crime. Like all other circumstantial evidence ownership and possession of a murder weapon before and after the murder does not exclude all hypotheses of innocence, but the jury were entitled to conclude that it excluded all reasonable hypotheses of innocence. That, of course, is the proper standard. State v. Knotts, 156 W. Va. 748, 197 S.E.2d 93 (1973).
Similarly, in Robinson v. State, 18 Md. App. 678, 308 A.2d 734 (1973), the only probative evidence was possession of the murder weapon before and after the murder, hairs found on the victim that were the same color as the defendant’s, unexplained blood stains on the shoes and jacket of the defendant, and ownership of a vehicle which emitted large quantities of carbon similar to the quantity and composition of the carbon found at the murder scene.
The record states:
Q. Did you go into the house ... your apartment?
A. Yeah, I went in and got a coat.
Q. What else then did you at that time take from the house?
A. The gun over the vent and my jacket.
Q. Where, if anyplace, then did you go after you had taken the gun and your jacket?
A. I went through the woods way to Dean Goodnight’s house on Cleveland Avenue.
Q. What was the purpose of your going to Dean Goodnight’s place?
A. To get some shells for the gun.
Q. What type shells were you at that time looking for?
A. .38s.
Q. Did Dean Goodnight have any .38 ammunition?
A. No.
Q. Did you at that time have an opportunity to observe the gun more closely then?
A. Yeah, I held it around and clicked it open and looked at it.
Q. Was it a .38 cal? Would you describe it the best you can now for us, please after you then saw it?
A. It was chrome or liquid plated and it had a black handle and was five shot and it dropped down like a shotgun.
Q. In other words, the cylinder popped open when you loaded it? By looking at the Cylinder you saw five holes and you could load it?
A. Yes.
Q. How long did you keep the gun?
A. Around two hours.
Q. Then what happened? Did you see Joe Dobbs later?
A. Yes.
*640Q. Where did you first see him after that?
A. I was at Dean Goodnight’s house and he came there.
Q. And what was his purpose of being there at that time?
A. He was looking for me.
Q. What, if anything, did he ask you for? Did you talk with him? A. Yes.
Q. What did Joe want?
A. Just wanted me.
Q. What did he want you for at that time?
A. I guess just to talk to me.
Q. How about in reference to the gun, did you have conversation about that?
A. After we got in the car.
Q. What, if anything, was your conversation with respect to the gun?
A. He said, did you steal my gun?
Q. Meaning the .38?
A. Yes.
Q. What did you do in reply to his question?
A. I said what gun.
Q. Then what?
A. He said, the gun over the vent.
Q. Then what did you respond and what did you do with the gun?
A. I pulled it out of my coat pocket and handed it to him.
Q. Did you then give him the gun?
A. Yeah.
Q. Did he take it?
A. Yeah.
Q. Did you then continue to see Joe at any time after you gave him the gun?
A. Well, we drove around that night.
Q. Did you at any time after that take the gun back?
A. No.
Q. Do you know what, if anything, happened to the gun after you gave it to Joe?
A. No.
Q. Did you ever make any observation as to how Joe maintained the gun or what he kept it in and that sort of thing while you were staying there at the apartment and that sort of thing?
A. It was wrapped in a rag over the vent as far as I know.
*641Q. Let me show you what has been marked as State’s Exhibit Number 18 and in talking of the gun you made mention to, how do you compare this item with the one that you had seen at that time? (Handing gun to witness)
A. This is it.
Q. You say that is it?
A. Yes.
MR. MASCARA: No further questions.
CROSS EXAMINATION BY MR. CLECKLEY
Q. Mr. Buby, where are you living now?
A. Forestry Camp at Davis.
Q. You are convicted of a crime, is that right?
A. Yes.
Q. What crime is that?
A. Breaking and entering.
Q. How about ... have you ever been charged or convicted with the larceny of a vehicle?
A. No, the charges were dropped as far as I know.
Q. The charges were dropped of a vehicle. Whose vehicle was that?
A. There was in two cases, one was a ’57 Chevy. There was another one that belonged to Joe Dobbs.
Q. As I understand it, when was the last day you had seen the gun?
A. It was sometime near the middle of August.
A. Yes. (By nod of head)
Q. How long have you been in Forestry Camp?
A. Six months and a half.
Q. That would be about December, is that right when you went?
A. No, I went in November.
Q. And would this be since the middle of August would today be the first time you have seen that gun since then? Between the middle of August and today, is this the first time you have seen the gun?
A. Yeah.
Q. You indicated after looking at it saying that this is it. Please, with as much particularity as you can in due time, how do you draw the conclusion that this is the gun.
A. It looks just about like the gun I seen.
Q. It looks about like it?
A. Except for the rust on it.
*642Q. The gun that you had seen didn’t have any rust on it?
A. Right.
Q. Other than this particular gun that you claim you saw there, were there any other guns in this apartment?
A. No.
Q. What caused you to take the gun?
A. I was afraid of Dobbs.
Q. You took it for protection, I guess?
A. Yes.
Q. And you kept it for about two hours?
A. Yeah.
Q. When he came along to get the gun back, where were you again?
A. At Dean Goodnight’s house.
Q. And that is where he found you?
A. Yes.
Q. As I understand it, this was in the middle of August too, wasn’t it?
A. Whenever I had the gun?
Q. Yes.
A. No, this was some time near the middle of July maybe the end of July.
Q. The middle of July or about the end of July?
A. Yes. (by nod of head)
Q. How long had the gun been over the vent that you were talking about?
A. I couldn’t say for sure. It was a week or so since when I noticed it and took it.
Q. Have you ever seen a .38 gun like that before?
A. Not exactly like that one.
Q. Have you seen other ,38s?
A. Yes.
Q. Where have you seen these?
A. A friend of mine had one in Barrackville.
Q. That’s the only one you’ve seen. Have you seen others other than the one your friend had?
A. A western pistol my cousin has.
Q. That wasn’t a .38 though or was it a .38?
A. A western, yes, .38.
Q. Let me make sure I understand it. You had first seen the gun that Joe Dobbs had in his possession. It wasn’t in the apartment at *643this time, but you had seen it before, that is before the gun was placed in the vent in the apartment, is that right?
A. Yes, but it was in the apartment when I seen it.
Q. Where was that?
A. This was in my bedroom.
Q. Who else was present at this time?
A. Me and Joe Dobbs.
Q. Were you the only two there?
A. Yes.
MR. CLECKLEY: No further questions of this witness. I would like to recall him for my case.
MR. MASCARA: No questions.
Whereupon, the witness was excused.