(dissenting).
I respectfully dissent.
We have a long-established rule in circumstantial evidence cases in 'criminal law that “the facts and circumstances relied upon by the state to establish guilt must not only be consistent with each other and with the hypothesis of defendant’s guilt, but they must also be inconsistent and irreconcilable with his innocence, and must point so clearly and satisfactorily to guilt as to exclude every reasonable hypothesis of innocence.” 1 Other cases put the rule in terms that the “[circumstances] must be irreconcilable with the innocence of the accused.” 2
Measured by this yardstick, the circumstances of defendant’s presence and action in the jewelry store, while suspicious and such as to have afforded him an opportunity to take the rings, fall short of being inconsistent and irreconcilable with his innocence and of excluding every reasonable hypothesis of innocence. The record is clear Mr. West, the proprietor, did not actually see any of the three persons in his store take the rings, although he saw defendant pick up one ring, look at it, and put that ring back in the tray. The rings were on top of the showcase. All three persons were looking at the rings and were close enough to have reached them. The defendant was the only one Mr. West saw handle the rings, but *405he testified the others were also standing around the counter and could have handled the rings. Mr. West did not notice what the other two persons were doing all the time and on two occasions Mr. West left the rings. Once was when he went to the front window to get a ring pointed out by the defendant. The other time was when he got the unset diamonds from a table near the watch counter and showed them to defendant under a light. Mr. West did not put the rings away and he did not notice what defendant’s two companions were doing during this time. Altogether the three persons were in the jewelry store around 10 minutes. One of them brought the matter to an end by saying, “Let’s go” and they thereupon departed, but there is no evidence this cue, if it was a cue, was given by defendant.3
The circumstances before us do not exclude every reasonable hypothesis of innocent intent on the part of defendant (such as looking at the rings and stones with a view toward buying) and they do not exclude every reasonable hypothesis that one or both of defendant’s companions may have taken the rings without defendant’s knowledge or contrivance. There was no evidence that there was any past relationship of defendant with the other two. The best the state can make out of these circumstances is that the defendant was present in the store when the ring was stolen and was in a position to have committed the theft. This is not sufficient to put him in the penitentiary for two years.
The state and the majority opinion then rely upon the rule that the unexplained possession of recently stolen property is sufficient to sustain a conviction of stealing the property. The trouble with this, however, is the state failed to prove that defendant, “ * * * with conscious knowledge of the fact that the property was stolen, exercised dominion and control over it * * * ”, State v. Webb (Mo.Sup.) 382 S.W.2d 601, 604.
To illustrate: when defendant was arrested on Olive Street in St. Louis, no search was made at that time of his automobile. The officers did not see the ring at that time. There is no evidence as to where the ring was or who had possession of it at that particular moment. Defendant was told to get out of the car, which he did, and he was then searched on the street for weapons. Defendant did not again enter his car. He had no further access to it and at all times after being ordered from his car, defendant was in the custody of the two police officers. They took him with them in the police car.
No search was made at the time of the arrest of the two women who were in defendant’s car, one of whom was sitting in the back seat next to defendant. The driver was searched, but only for weapons and was then permitted to get back in the car. The police did not keep the car or its occupants under close observation. They left the car on the police lot, alone with its three occupants, and it was not until some 10 or 15 minutes after the arrest that Officer Weber searched the car. Then it was that he found the ring on the floor, “approximately where” defendant had been sitting some 10 or 15 minutes earlier. Here, as in the recent case of State v. Schleicher, Mo., Division One, 438 S.W.2d 258 which involved a question of what was sufficient to show possession in defendant of recently stolen property, there is in this record no *406evidence that defendant at any time had dominion and control over the ring.
No one saw defendant in possession of the ring. Again the state is relying on circumstantial evidence to establish defendant’s possession. But the circumstances are as consistent with some one or all or combination of the other three in the car having put the ring where it was found as with defendant’s having done so. The floor of the car was as open and available to them as it was to defendant, more so in fact during the 10 or 15 minutes when defendant was not in the car at all. There is nothing in the record to show that defendant is legally chargeable with their acts, or that he had any knowledge of what they did after he left the car. “It would be pushing the rule too far to require of one accused of a crime an explanation of his possession of the stolen property, when such possession could also, with equal right, be attributed to another”, State v. Warford, 106 Mo. 55, 16 S.W. 886, 888. The circumstances are as consistent with one of the three putting the ring on the floor of the car after defendant left the car as with defendant’s having put it there. As stated in State v. Fogle, 211 Mo.App. 18, 244 S.W. 105, 106-107, a circumstantial evidence case involving alleged theft of a tire which was later found on defendant’s car (a situation quite similar to what we have here where a stolen ring is later found in defendant’s car), “ * * * in short, the possession must be such as to exclude the idea that some other person may have left the casing where it was found. * * * ” There was no showing of possession in defendant in the case at bar such as to exclude the idea that one or more of the three who were left in charge of the automobile put the ring where it was found.
The mere fact the automobile was owned by defendant is not sufficient in these circumstances to charge him with having had the exercise of dominion and control over the ring. When defendant left the car at the order of the police there was at that moment nothing to show who had possession of the ring. When the ring was found some 10 or 15 minutes later, the automobile was not then in fact in his possession but was, instead, in the exclusive possession of his three companions, for whose actions, as earlier mentioned, defendant was not shown to be responsible. The ring was found in an open area on the rear floor, a location which was within easy reach of any of the three occupants at any time. How or when the ring got there is not shown. Significantly, the ring was not found in some cache or locked compartment in the car which would likely be known or accessible to the car owner alone. In my opinion, under these facts, defendant cannot be said to have been in possession of the ring within the rule relied upon by the state.
State v. Meeks, 327 Mo. 1209, 39 S.W.2d 765, 768, cited by the majority opinion for the proposition there is no merit in defendant’s point that the ring was not found in his car until some 10 or 15 minutes after the car had been in the exclusive possession of others than defendant, is clearly distinguishable, I respectfully submit. In the Meeks case, the automobile in which the stolen cigarettes were later found was in the exclusive possession of the police at aU times after the defandants were arrested. Therefore, no one else but defendants could have put the cigarettes where they were found. The court so states at 39 S.W.2d l.c. 768: “ * * * There was no evidence tending to show in the slightest degree that any one had concealed the cigarettes in the car after the defendants had lost exclusive possession of it. * * *” The facts are much different in the present case. Also, another distinction is that the cigarettes in the Meeks case were found stashed away in what the opinion described as “places of seeming concealment”, which is not the case here as to the ring.
In State v. Webb (Mo.Sup.) 382 S.W.2d 601, 604, cited by the majority opinion for the proposition that a joint possession is sufficient, the facts were that defendant was present in his house at the time the stolen property was found therein, some of the loot *407being under the bed in which he was sleeping. In our case the defendant was not present in the car when the ring was found, but others were who had free, independent access to where the ring was found. In the other State v. Webb case cited in the majority opinion on the proposition that joint possession is sufficient, (Mo.Sup.) 432 S.W.2d 218, the facts as to possession are not at all similar. Webb admittedly had joint possession of the stolen hogs — he claimed he was hauling them for someone else and that his possession was not exclusive and unexplained. State v. Jordan (Mo.Sup.) 235 S.W.2d 379, a shop lifting case involving three women jointly charged, cited in the majority opinion, is also a case which starts with a joint possession.
In the two Webb cases and the Jordan case, step one — possession—was established, and, then, step two, it was held possession need not be exclusive. Here, however, the issue is whether there is sufficient circumstantial evidence to show step one — the required possession in defendant. This issue cannot be resolved by simply applying step two — that possession need not be exclusive. Under the approach thus used, step one — did the defendant have possession? — on which step two depends, remains unestablished.
There is a long line of Missouri cases holding that mere suspicion of guilt, however strong, is not sufficient to authorize a criminal conviction. In affirming this conviction we, in effect, violate our rules as to circumstantial evidence, presumption of innocence, and what it takes in the way of possession of stolen property to permit an inference of guilt of theft.
There is a sound reason for the circumstantial evidence rule which has been in force in Missouri for so long in criminal cases. It is based on the idea that in a circumstantial evidence case in a criminal proceeding the jury not only has to weigh the evidence by which the circumstances are established, but it must draw just conclusions from them. It is easy to take a one-sided view of circumstances when under the influence of a few powerful impressions. But one of our highest principles is that every person is presumed to be innocent of the crime charged until proved guilty beyond a reasonable doubt. Frequently a case which rests entirely on circumstantial evidence as does this one (no one saw defendant steal the ring and no one saw it in his possession) will admit of several counter or rival hypotheses. In such a situation, all the conclusions must be satisfactorily disposed of and excluded before the presumption of innocence can with safety be abandoned. In the case before us the hypothesis that someone other than defendant stole the ring equally well accounts for the facts proved in this case. In actuality, there is no dispute about the circumstances in this case — but the conclusion that there is no reasonable hypothesis of defendant’s innocence does not necessarily follow. The circumstances do not exclude the hypothesis that someone other than defendant and for whose acts he was not shown to be responsible took the ring at the store in Fulton and left it in his car without his knowledge. The circumstances are equivocal and we should not permit a defendant to be put in jail on equivocal circumstantial evidence. Where a conviction rests on circumstantial evidence, as is the case here, we have required the circumstances to be irreconcilable with innocence and to point to guilt so clearly as to exclude every reasonable hypothesis of innocence.
Nor is this rule changed by the fact that the jury has returned a verdict of guilty and we, therefore, accept as true all evidence tending to prove guilt, etc., or by the other general rules cited in the majority opinion as to appellate review. This court has many times reversed a conviction resting entirely on circumstantial evidence. Even after verdict the test still is that “ * * * ‘the circumstances, to warrant a conviction, must be consistent with each other, must tend to prove guilt, and not only must be consistent with the hypothesis of the defendant’s guilt, but must be inconsistent with every other reasonable hypothesis, including the hypothesis of his innocence’ * * * ” The Missouri courts have not affirmed such convic*408tions where the facts and circumstances shown by the evidence are not inconsistent with the innocence of the defendant. As illustrative of many such cases, see State v. Pritchett, supra, 39 S.W.2d l.c. 796-797, from which the above quotation is taken, State v. Murphy, banc, 356 Mo. 110, 201 S.W.2d 280, and State v. Watson (Mo.Sup.) 350 S.W.2d 763, one of the cases relied on in the majority opinion.
I would have no objection to remanding this case rather than reversing it outright, so as to give the state opportunity to present additional evidence. The state unquestionably knows the identity of the three persons who were in the automobile with the defendant in St. Louis when he was arrested. If the state had investigated what these persons knew about the ring being on the floor of the car and had used them as witnesses, I doubt very much if we would have our present problem, although in voicing this observation I realize I am speaking from the advantage of hindsight. The chances are the state could also find out the identity of the two persons who were with defendant in the store in Fulton. These witnesses should be able to plug the gaps which exist in the state’s case against the defendant, if the defendant is the thief. But if the state is not able to present evidence beyond what is in the present record, the information should be dismissed and defendant discharged.
. For recent declarations to this effect in Divisions One and Two of this court see State v. Sallee, Mo., 436 S.W.2d 246 and State v. Aguilar, Mo., 429 S.W.2d 754. The rule goes back almost 100 years, State v. Hill, 65 Mo. 84.
. See, State v. Wilson, 345 Mo. 862, 136 S.W.2d 993, 997; State v. Freyer, 330 Mo. 62, 48 S.W.2d 894, 899; State v. Pritchett, 327 Mo. 1143, 39 S.W.2d 794, 797.
. As an example of affirmative participation by defendant in the theft, the majority opinion states defendant’s automobile “was used to transport them [defendant’s companions] to Fulton.” However, while there was direct evidence defendant’s car was parked near the store, there is no direct evidence in the record one way or the other as to how defendant’s companions got to Fulton. Ko doubt the majority opinion means the inference is that defendant used his car to bring them to Fulton.
Such an inference is possible, of course, but the conclusion sought that defendant actually did so is by no means thereby established. There are many ways defendant's companions could have been in Fulton without his transporting them there and there are many innocent reasons why a person might have his automobile in Fulton.