Appellant was charged by affidavit with the commission of a crime under Ind. Anno. Stat. § 10-704 (1956 Repl.) which reads in pertinent part:
“Whoever enters any dwelling house . . . business house . . . shop, office, storehouse, warehouse ... or any other erection or inclosure, with the intent to commit a felony therein, shall, on conviction, be imprisoned for not less than one (1) year nor more than ten (10) years . . .”
He was tried without intervention of a jury, found guilty as charged, and sentenced to imprisonment for one to ten years. The assignment of error and motion for new trial present only a question of the sufficiency of the evidence.
*439*438There are two distinct elements which must be proved to sustain the charge: (1) the entry, and (2) the intent to com*439mit a felony therein. From the testimony of the witnesses called on behalf of the State of Indiana, it is clear that, on January 20, 1967, at or about 8:57 A. M., appellant was found and arrested in a parts room of a garage located at 541 North Senate, Indianapolis, Indiana. There is no contention by the appellant that he did not, in fact, enter the garage, as .charged. The only element here in question is whether appellant had the requisite intent to commit a felony.
The Offenses Against Property Act provides that “a person commits theft when he (1) knowingly:
(a) obtains or exerts unauthorized control over property of the owner . . . and (2) . . .
(b) intends to deprive the owner permanently of the use or benefit of the property . . .” Ind. Anno. Stat. § 10-3030 (1968 Supp.)
According to the affidavit, the specific felony which appellant allegedly intended to commit was:
(a) “to unlawfully and feloniously and knowingly obtain and exert unauthorized control over property of . . . Joseph Cohen, doing business as Cohen Brothers Garage,” and
(b) “to deprive said Joseph Cohen . . . permanently of the use and benefit of said property . . .”
Thus, unless it .can be shown or reasonably inferred from substantial evidence of probative value that, when appellant entered the building, he did so with the intent to commit a theft under Ind. Anno. Stat. § 10-3030 (1968 Supp.), the conviction must be reversed.
Apparently, appellant gave two different explanations for his presence in the building: he told Robert Morey, the general manager, and Joseph Cohen, one of the owners of the business, that he had entered the building to get a drink of water and to get warm; he told the arresting officer and testified at the trial that he had entered the building with two other persons after having been hired and let into the build*440ing by an unknown man to clean out the garage for the owners, and that the other two men had been “working” with him but had left when they heard the approaching footsteps of the police officers. The day watchman testified that he had seen a second man in the building with appellant prior to the arrest, but both Robert Morey and Joseph Cohen testified that they had not hired anyone to clean the garage and had never employed the appellant. There were several broken windows in the building through which appellant could have entered without using force.
The evidence is not clear whether appellant was hiding or just standing in the parts room when first discovered by Robert Morey. Mr. Morey testified as follows:
“A. ... I found a room on the southwest corner that was apparently locked. I tried the door. We had tried every place else. I had looked on the roof. This door was apparently locked. I knew it was not normally locked. It was normally kept open. So I put my shoulder to the door and busted the door open. The lock slipped and the door slipped open. And just inside the room hiding right beside the door was a man standing there.
Q. I see. Now, will you define what you mean by hiding ?
A. He was standing back against the wall right inside the door, just standing there. Now, I don’t know if you would call this hiding, but he seemed to be cramming himself against the wall. So, it seemed to me he was hiding.” (our emphasis).
It is fair to say that at the least appellant was not making his presence in the building obvious or apparent.
We agree with appellee that the trier of fact has the prerogative to question and disbelieve the appellant’s explanations of his presence in the garage, and that intent may be established by inference from the circumstances surrounding an act. But, there is an equally important limitation to this general rule of law.
“Where the evidence of an issuable fact is wholly circumstantial in nature the evidence must be so conclusive and *441compelling in character that it excludes every reasonable hypothesis of the presumption of innocence of the defendant. White v. State (1948), 226 Ind. 309, 79 N. E. 2d 771. While the above rule has been held to be for the guidance of the trial court and on appeal it is not the province or right of this Court to weigh the evidence, however, it is the duty of this Court to examine the record of the evidence to determine whether there was sufficient evidence substantial in character to support the court’s finding on each of the issuable facts or elements of the crime charged beyond a reasonable doubt.” Easton v. State (1967), 248 Ind. 338, 228 N. E. 2d 6, 10-11.
“Thus it is clear that where evidence is wholly circumstantial and fails to exclude every reasonable hypothesis of innocence such evidence is not sufficiently persuasive to allow a reasonable man to find the accused guilty beyond a reasonable doubt and such a finding and judgment of guilty cannot stand.” Manlove v. State (1968), 250 Ind. 70, 232 N. E. 2d 874, 879.
We do not agree that the appellant’s mere presence in the garage, whether or not properly or consistently explained by appellant, or his apparent desire to remain unnoticed in the parts room are sufficient to prove that he had an intent to commit a theft when he entered the building. He would have been as apt to act in the same manner had he entered the building for any other reason without the consent of the owner. There is no evidence that any property within the garage had been removed or disturbed in any way.
While there is ample evidence to show that appellant was in the garage without the consent of the owner or manager of the business, it can not be inferred from this fact alone that he had entered the garage with the intent to commit a theft. Easton v. State, supra; see also, Kondrup v. State (1968), 250 Ind. 320, 235 N. E. 2d 703; Coleman v. State (1967), 248 Ind. 137, 224 N. E. 2d 47.
“If the evidence merely tends to establish a suspicion of guilt, it is not sufficient to sustain a conviction. Robertson v. State, (1925), 231 Ind. 368, 108 N. E. 2d 711; Steffler v. State, (1952), 230 Ind. 557, 104 N. E. 2d 729; Todd v. State, (1951), 230 Ind. 85, 90, 101 N. E. *4422d 922; Hiner v. State, (1925), 196 Ind. 594, 149 N. E. 168. Mere opportunity to commit crime is insufficient to sustain a conviction. Osbon v. State, (1938), 213 Ind. 413, 424, 424, 13 N. E. 2d 223. ‘It is not enough that evidence merely tends to support the conclusion of guilt; it must support it.’ Martin v. State, (1897), 148 Ind. 519, 521, 47 N. E. 930.” Baker v. State (1956), 236 Ind. 55, 59-60, 138 N. E. 2d 641, 644. Easton v. State, supra, at 13.
Although the state has probably shown a trespass merely by the appellant’s entry, it has not shown by any evidence of probative value that said entry was made with the intent to commit a theft consistent with the state’s burden to prove such a material fact beyond a reasonable doubt.
Therefore, we agree with appellant that the evidence presented to the trial court is insufficient to prove that he entered the premises with the requisite intent to commit a felony. The judgment of the trial court must be reversed and the cause remanded with instructions to sustain the appellant’s motion for a new trial.
Judgment reversed.
Jackson, J. concurs. DeBruler, J. concurs with opinion. Arterburn, J. dissents with opinion in which Lewis, C. J. concurs.