dissenting.
I dissent.
The facts developed follow a time-worn pattern. They closely parallel those shown in the ease of State v. McCarthy, 36 Mont. 226, 92 Pac. 521.
The entire proof offered by the state and received by the court in the case at bar was based upon circumstantial evidence.
When a conviction is sought upon circumstantial evidence, the proof must be such as not only to authorize a belief in the guilt of the accused, but also to exclude every other reasonable hypothesis. State v. Mullins, 55 Mont. 95, at page 99, 173 Pac. 788, at page 789.
Convictions may not be founded upon conjectures, however shrewd, nor upon probabilities, however strong, State v. McCarthy, supra; State v. Taylor, 51 Mont. 387, 390, 153 Pac. 275, but only upon evidence which establishes the guilt of the accused beyond a reasonable doubt, that is, upon proof such as to logically compel the conviction that the charge is true. State v. Mullins, supra; State v. Postal Telegraph Cable Co., 53 Mont. 104, 161 Pac. 953; State v. Riggs, 56 Mont. 393, 185 Pac. 165; State v. Riggs, 61 Mont. 25, 201 Pac. 272; State v. Gilbert, 126 Mont. 171, 246 Pac. (2d) 814, 816.
In all of the above-cited decisions this court has recognized and applied the rule that unless the circumstantial evidence fully meets the above tests therein announced, it is insufficient to sustain a conviction.
The Charge. The defendant was accused of having committed *341the crime of grand larceny. It was charged that on or about January 2, 1955, he did “wilfully, unlawfully and feloniously take, steal and carry away certain personal property of one Richard E. Walters, to-wit, lawful money of the United States of America in the amount and value of $160, with the intent * * * in him * * * to defraud and deprive the said Richard E. Walters of his said personal property * * *”
To sustain a conviction of larceny every essential element of the crime must be proved beyond a reasonable doubt by sufficient competent evidence. Evidence that raises a mere suspicion, conjecture and possibility is insufficient as a foundation for a verdict. 52 C.J.S. Larceny, section 129, pages 952, 953, notes 96, 97 and 98.
A taking or what is technically known as the caption is an essential part of the crime of larceny. It is the actual taking into possession or control and is usually accomplished by grasping, seizing or laying hold of an article. If the accused never had control of the property for a single instant he did not “take” it. State v. Johnson, 78 Kan. 866, 96 Pac. 216. The mere touching of an article is not a “taking.” Tarrango v. State, 44 Tex. Cr. 385, 71 S.W. 597. Compare State v. Foster, 26 Mont. 71, 66 Pac. 565; State v. Whorton, 25 Mont. 11, 63 Pac. 627; State v. McCarthy, supra.
In order to constitute larceny the property must not only be x< taken” but it must also be “ca/rried away.” Here again the record fails to establish any “carrying away” or “asportation” by the accused of any money or other personal property belonging to Richard E. Walters.
Of the eight witnesses who testified for the state at Peschon’s trial not a single witness testified to either the “taking” or the xtcarrying away” by the accused of any article of personal property identified as being the property of Walters.
The testimony is a rather detailed account of a lost weekend — of a protracted spree which began Saturday at dusk and ended Monday at dawn.
Saturday, December 31, 1954. Richard Walters, a ranch-hand *342traveled from the McLeish ranch where he was employed to Chinook, Montana, a distance of forty-five miles, to spend the week-end which included New Years Eve and New Years Day.
He arrived in Chinook at about 5:00 o ’clock on Saturday, evening, December 31, 1954, at which time he had.some fifty dollars in cash and a $312.07 check, representing his wages earned.
Immediately upon his arrival he proceeded to celebrate, traveling from bar to bar, drinking and buying drinks for others there gathered. In the course of his travel on this his first night in town, at a bar known as the Bar X, Walters cashed his $312.07 check and was paid mostly in twenty dollar bills and the balance in hard money. After counting his change, Walters deposited the paper money in his leather billfold which he then placed in the right-hand pocket of his shirt where he says he always kept it. At no subsequent time did Walters count any of the money so carried in his billfold.
At about 11:00 o’clock on Saturday night, Lee Falcon, the state’s second witness, spent some time with Walters at a tavern in Chinook, known .as the Elks Bar.
Concerning Saturday evening, December- 31, Walters who was the state’s first witness testified:
“Q. And did you do much drinking that evening. A. Yes.
“Q. Did it cost quite a little money? A. I imagine it would.
“Q. You don’t remember at all how much you spent? A. I don’t remember how mtich I spent.
“Q. Could you give us an estimate as to how much you spent? A. No, sir.”
Sunday, January 1, 1955. Sometimes after 2:00 o’clock Sunday morning, January 1, Walters repaired to the Chinook Hotel where he had a room. He testified:
“Q. And about what time did you go [to] the hotel? A. I don’t have any idea.
“Q. Had the bars closed? A. Yes.
‘ ‘ Q. Do you know what time they close here ? A. Two o ’clock.
*343“Q. So it was sometime after that you went to the hotel? A. Yes. * * *
“Q. And after you got up the next morning, did you check your wallet to find out how much money you had? A. I never.
“ Q. When you got up that morning of January 1, Sunday morning, your wallet was in your pocket at that time? A. It was, yes.
“Q. But you didn’t check how much money was in it? A. Just several bills was in it. I didn’t pay any attention as to the particular amount. I didn’t count to see how much was in it, no.”
There is no evidence that Walters or any other person ever counted Walters’ money at any time or place other than on Saturday night, December 31, at the Bar X at the time of the cashing of the $312.07 cheek.
On his direct-examination by the county attorney, Walters further testified:
“Q. Did you go back to any local bars the following day? A. Yes, sir. * * *
‘ ‘ Q. And do you remember what ba,r you were in toward the close of your drinking that day? A. At the Stockman's Bar.
“Q. Can you recall now what time New Years Day you went in the Stockman’s Bar? A. No, I don’t.
“Q. Do you remember buying any drinks at the Stockman’s Bar? A. Yes, sir.
‘ ‘ Q. What is your last recollection of your being in the Stock-man ’s Bar? A. I was sitting at the bar drinking — visiting with different people.
‘ ‘ Q. Do you know whether or not you went to sleep or passed out? A. Yes, I remember I was — first thing I just didn’t know anything.
• “Q. Do you remember putting your head down on the bar? A. No, sir.
“Q. According to your last recollection, before you passed out, did you have any money left? A. Yes, sir.
*3441 ‘ Q And do you recall about how much money you had left ? A. I had several twenty dollar bills.
“Q. Do you have any idea what you had? A. No, I don’t. & -J?
“Q. Do you remember handing your billfold to the barmaid? A. No, sir.
“Q. (continuing) at any time? A. No, sir.
‘ ‘ Q. What is your first recollection after you passed out that night? Do you remember anyone waking you up? A. The policeman took me over to the police station.
“Q. And you were awake at that time. A. Well, I just remember when 1 got over there; that’s the first I remember.
“Q. And at that time, did you check to see whether you had your billfold with youf A. No, sir, 1 hadn’t even checked.
‘1Q. Then, when was the first time you checked to see whether you had your billfold? A. The policeman told me I had been robbed, so I felt and it was gone.
“Q. Where was that? A. In the police station.
“ Q. Were yon able to find your billfold at that time? A. No, sir. Q. (continuing) on your person? A. No, sir.
“Q. Now before you passed out at the Stockman’s Bar, cam you remember any particular person sitting near you? A. Not anyone particular, no.
“Q. Do you know the defendant, Edward Peschon? A. No, sir.
“Q. I assume you didn’t know Edward Peschon on that night? A. No, sir.
“Q. And do you remember anyone removing anything from your pocket? A. No, sir.
“Q. Was there any way that you could identify the money which you were carrying that night ? A. Only just — it was mostly ioi twenty dollar bills.
‘ ‘ Q. There is no way you can tell those from any other twenty dollar bills? A. No, sir.
“Q. Have you ever seen your billfold since that night? A. No, sir.”
*345On cross-examination Walters further testified:
“Q. After you got to the Stockman’s, did you buy any drinks there? A. Yes, sir.
“Q. And do you recall who you bought them for? A. No.
‘ ‘ Q. Do you know how many drinks you bought at the Stock-man’s? A. Several rounds.
“Q. For about how many people? A. There must have been .six or seven there.
“Q. Do you recall paying for them? A. Yes, sir.
“Q. Do you recall the hind of bills that you used to pay for them¶ A. No, sir. * * *
“Q. Do you recall sitting at the bar in the Stockman’s? A. Yes.
“Q. And about how long had you been in the Stockman’s at the time you recall sitting at the bar? A. I recall being there .and then all at once I didn’t know anything.
“Q. Is that when you passed out? A. Yes.
“Q. About how long had you been in the Stockman’s Bar before you passed out? A. I don’t know.
‘ ‘ Q. Can you tell the jury approximately ? A. No.
“Q. Were you in there more them an hour? A. Quite a few.
“Q. Would it be as much as tivo hours? A. Yes.
“Q. Gould it have been more than that? A. I wouldn’t know.
“ Q. Do you recall how many times you bought drinks in the Stockman’s Bar? A. No, sir.
‘ ‘ Q. Could you tell the jury approximately how many times ? A. No.
“Q. Did you spend any money at all in the Stockman’s? A. Yes, sir.
‘ ‘ Q. Do you know how much ? A. No.
“Q. At the time you were sitting at the bar in the Stockman’s, just immediately before you passed out. I think you stated that you were talking with people along the bar? A. Different people, yes.
*346“Q. Were there quite a number of.people there? A. Quite a few people, yes.
“Q. Sitting up at the bar? A. Yes.
‘ ‘ Q. About how many would you say were sitting at the bar ? A. I wouldn’t say how many; I couldn’t say.
“Q. Do you recall cashing any bills at the Stockman’s? A. Yes, I cashed some bills there.
“Q. Do you recall how many? A. No.
“Q. Well, could you tell the jury how many you had in your wallet when you were in the Stockman’s? A. No.
“Q. Could you tell the jury how much money you, had spent the night before and up to- the time you came to the Stockman’s the next evening? A. No.
‘ ‘ Q. Do you have any way of arriving at the amount of money that you, might have spent? A. No.
‘‘Q. Could you have spent as much as $60.00? A. Yes.
“Q. Could you have spent more than that. A. I could have spent a little more than that; yes.
“Q. By a little more, how much do you mean ? A. I wouldn’t know, because I didn’t keep track of how much money I was spending.
“Q. Well, how much did you have? A. I wouldn’t know how much I had.
“Q. You say you had several twenty dollar bills? A. Yes. * * * I never counted them, but just by the looks of it there was that much money in there.
“Q. Just by guessing on your part? A. Yes.
“Q. In short, you don’t know how much money you had? A. No. * * *
“Q. And the first time you knew you didn’t have your wallet was over at the police station? A. Yes, sir.”
About 11:00 o’clock Sunday night, January 1, Lee Falcon and Joe Briere’s daughter Carol entered the Stockman’s Bar in Chinook and took seats at-the bar. near the-bar stool then occupied by Bichard Walters. Lee Falcon then talked with Walters and introduced him to Carol.
*347On Ms direct-examination by the county attorney, Lee Falcon testified:
“Q. What was Walter’s condition at that time? A. Well he was pretty drunk.
“Q. Can yon state now whether or not he had any money at that time? A. Well, when he paid for our drinks I seen his wallet, and I knew he had some bills in it.
“Q. What did he do with the wallet at that time? A. He handed it to the barmaid, and she took ont a twenty dollar bill, and she pnt fifteen dollars back in the billfold.
“Q. Well, at that time were you able to see whether there was any other bills in the billfold? A. No, sir.
“Q. And do you know what was done with the billfold after these drinks were paid for? A. It was stuck back in Walters’ shirt.
“Q. Who put it back in Walters’ shirt? A. Katherine.
“Q. The barmaid? A. Yes, sir.
“Q. Did Walters pass out at the bar that evening at any time you were there? A. Well, after he paid for our drink he did.
“Q. About how long after that? A. I would say it wasn’t over ten or fifteen minutes.
“Q. What did he do then? A. He just land his arms on the bar and went to sleep.
“Q. Did he put his head on his arms? A. Yes.”
On his cross-examination the witness Lee Falcon testified:
“Q. You observed Ed [the defendant] sitting down at the bar? A. Yes, sir.
‘ ‘ Q. And what did you observe him do ? A. He sat down there and laid his arms on the bar; that’s all I saw him doing. He folded them like that. * * *
“Q. Well, now, you saw Ed with his arms folded for ten minutes there at the bar. What would lead you to believe Ed had taken the wallet? A. Well, I couldn’t say.
“Q. In other words, have you any reason at all for making the statement that lie stole the wallet? A. No, I haven’t.
“Q. Well, in other words then, as I understand your testi*348mony, you can’t tell this jury that Ed did take this wallet? A. No, sir. * * *
“Q. Were you trying to protect yourself — is that why you made this complaint ? A. No, sir.
“Q. In other words, as I understand it, you don’t have any justification for making the complaint?
“The Court: Now, just a minute; that’s an argumentative question. Just ask him for facts and let the jury decide whether he had any justification.
“Q. (By Mr. Gillan) In other words, you didn’t see anything that would lead you to believe that Ed took that wallet, did you? A. No, sir.”
Monday, January 2, 1955. Lee Falcon did not see the defendant Peschon in the Stockman’s Bar at any time before Walters “passed out,” but later he “just happened to notice him pass by” on his way to and from the lavatory. Falcon testified that after defendant came from the lavatory he went up close to Walters and was touching both his hind pockets, and that defendant then seated himself at Walter’s right with his arms on the bar. Falcon said that then he was unable to see what was going on “because Walters was laying down there.” However Falcon told his companion Carol “to look over there” to see if she could see what was going on between the defendant and Walters. The time was then “a little after midnight” which would make it early Monday morning, January 2d.
The county attorney’s direct-examination of Lee Falcon commenced as follows:
‘ ‘ Q. Will you state your name ? A. Lee Falcon.
“Q. Where do you live? A. Chinook, Montana.
“Q. You are a married man? A. Yes, sir.
“Q. What is your wife’s maiden name? A. Carol Briere.
“Q. What is your occupation? A. Farm hand.”
The first two questions were proper. The third question was improper It is a leading question. It placed the desired answer in the mouth of the witness. It commanded an affirmative answer. It did not ask: “Are you married or single?” It de*349clao'ed: “You are a married man.” And Falcon said, “Yes, sir. ’ ’
The cross-examination of the state’s witness, Lee Falcon, conducted on March 11, 1955, by defendant’s counsel is quite revealing. According to the record, it began as follows:
“Q. You say you are married? A. Yes, sir.
“Q. Who is your wife? A. Carol Falcon.
“Q. Where were you married. A. We wasn’t married.
“Q. What? A. I said we didn’t get married.
“Q. Didn’t you just say you were married?
“Mr. Thomas: Objected to as being irrelevant and immaterial.
“The Court: You mean, whether there was any marriage ceremony performed, is that what you are trying to find out?
“Mr. Gillan: Well, your Honor, I asked him if he was married and he said he was, and I just asked him where he was married.
‘1 The Court: You mean, she is hiving with you as your common-law wife? A. Yes, sir.
“Q. (By Mr. Gillan) What is your employment? A. Farm hand.
“Q. And when did you last work? A. I have been tagging sheep all winter just off and on.
“Q. Whom were you working for? A. My father-in-law.
“Q. What is his name? A. Joe Briere.
“Q. Was he paying you any wages? A. Yes, sir.
“Q. How much have you earned this winter? A. Well, I couldn’t say. * * *
“Q. Have you drawn any unemployment compensation in that period? A. Starting after New Year’s.
“Q. Have you been employed since New Year’s? A. No, sir. * * *
“Q. Are you still drawing unemployment compensation? A. Yes, sir.”
The law requires considerably more than is shown by the record before us to make teen age, Carol Briere, the common-law wife of the state’s witness Lee Falcon. Compare Miller v. Sutherland, Mont. 309 Pac. (2d) 322.
*350The law also requires more than a mere informal “shacking up” for the winter with his daughter to make Carol’s parent the “father-in-law” of the witness Lee Falcon.
Walter’s Wife: Apparently the county attorney deemed it important to provide both Richard Walters and Lee Falcon with the stabilizing influence of a wife without first asking either witness the direct question, “Are you a single or a married man?” In his direct-examination of the state’s first and principal witness Walters, the county attorney proceeded thus:
“Q. Will you state your name? A. Richard E. Walters.
“Q. Where do you live? A. I have been living and working on a ranch. * * *
“Q. Were you employed at that ranch prior to January 1, 1955? A. Yes, sir.
“Q. And for how long immediately prior to January 1 of this year had you been employed there? A. One month.
“Q. Was your wife, also, employed there? A. Yes, sir.
“Q. Where were you on December 31, 1954? A. Here in the City of Chinook.
“Q. And did you come into Chinook from the ranch on that day? A. Yes, sir.
“Q. You and your ivife were together? A. Yes.”
The interrogatory, “Was your wife employed there?” assumes a state of facts not theretofore shown to exist in that it assumed that Walters then was a married man and that he then had a wife.
The subsequent declaration, “You, and your wife were together?” is a leading question or statement by the prosecutor which assumes another state of assumed facts not theretofore shown to exist and which places the direct affirmative answer in the mouth of the witness Walters.
The importance of the marital status of witness Walters cannot be minimized in view of his testimony to the effect that sometime after 2:00 o’clock on Sunday morning, January 1st, he turned in and went to bed at the Chinook hotel which was *351hours after the time on Saturday night, December 31st, when he cashed his $312.07 check at the Bar X Bar.
On his cross-examination concerning his activities on Saturday night, December 31st, Walters testified as follows:
“Q. Was your wife in town with you that night? A. Yes, sir.
“Q. Was she with you — that would be Saturday night, the 31st? A. Yes, sir.
“Q. She was with, you ? A. Yes, sir.
“Q. And about what time did you go to the hotel? A. I don’t have any idea.
“Q. Had the bar closed ? A. Yes.
' ‘ Q. Do you know what time they close here. A. Two o ’clock.
‘ ‘ Q. So it was sometime after. that you went to the hotel ? A. Yes.
“Q. And was your wife with you? A. Yes, sir.
“Q. And after you got up the next morning, did you check your wallet to find out how much money you had? A. I never”
The information on which the defendant was charged, tried and convicted was filed on January 11, 1955, being but nine days after Walters missed his billfold and its contents. The names of all the state’s witnesses were endorsed on such information, but the name of the woman who accompanied Walters to the Chinook hotel on Sunday morning, January 1st, nowhere appears in this, list nor did the county attorney produce her or attempt to justify his failure and omission to produce or subpoena her as a witness at the trial. She may have had an inkling at least of the amount of money Walters then had. She may have given some thought about protecting Walters from himself, his weakness and his folly. She may have taken at least one quick peek in the billfold to see how their cash was holding out in the light of Walter’s condition and the direction in which he was headed. She could have tucked some of the folding money in her stocking to present to Walters when he finally sobered up. In my opinion these are all reasonable hypotheses. Compare State.v. Mullins, supra, and State v. McCarthy, supra.
*352The state’s third witness at the trial was Carol Briere, a young girl who then lived with her parents, Mr. and Mrs. Joe Biere, in the south part of Chinook. She testified that about 7 o’clock on Sunday evening, January 1st, she stopped at the Stockman’s Bar for about ten or fifteen minutes; that she then went to a dance in the country north of Chinook; that upon her return from the dance she and Lee Falcon came to the Stockman’s Bar, arriving there about 11:00 o’clock that night, at which time she observed Richard Walters sitting at the bar; that seated on the next stool on Walter’s left was one Paul Clark; that Walters then “was pretty intoxicated”; that the witness Carol took the stool to the left of Clark and Lee Falcon ook the one to the left of Carol; that soon after the witness Carol was seated Clark departed from the bar leaving an empty bar stool between Carol and Walters; that Lee Falcon introduced Carol to Walters and that Walters “bought some drinks and then he passed out after a while.”
Carol, upon her direct-examination by the county attorney, further testified:
“Q. Did you notice whether or not he [Walters] had any money? A. I knew he had some money, but I didn’t know how much he had on him.
“Q. Did you see his billfold at any time that evening? A. No, I didn’t.
“Q. Did you see any money, or any other article, pass between Walters and the barmaid? A. She gave him some change back from what he had paid for the drinks with. She gave him some change back.
“Q. Did you observe any occasion when she may have put the billfold in his shirt pocket? A. No, I didn’t. I don’t remember.
“Q. Who was tending bar at that time? A. Katherine.
“Q. Do you know what her last name is? A. No, I don’t.
“Q. Do you know the defendant, Edward Peschon? A. Yes. * * *
“Q. Can you state whether or not he was in the bar when *353you came into the bar at 11:00 o’clock that night? A. Well, I don’t know if he was already in there, or if he came in after we did; I couldn’t say. * * *
“Q. Was he sitting down? A. Yes.
“Q. And was he on the stool immediately to the right of Walters? A. Yes.
‘ ‘ Q. Could you tell what he was doing at the time ? A. Well he wasn’t doing anything. He had his hands on top of the— I mean, he had his arms on top of the bar.
“Q. Gould you see his hands? A. No, I couldn’t see his hands.
“Q. What was Walters’ condition at that time? A. Well, he had passed out then — at that time.
“ Q. How was Walters sitting at the time- — -what position was he in? A. He had his arms and his head down. * * *
“Q. And as I understand it, you weren’t able to see Peschon’s hands? A. No, I couldn’t see his hands.
‘ ‘ Q. How long did Peschon stay there so far as you noticed ? A. He didn’t stay there too long. * * *
‘ ‘ Q. And did you see Peschon get up from the bar ? A. Yes.
‘ ‘ Q. And did you observe what he did after he got up ? A. He went to the lavatory.
“Q. Do you know if he went by himself? A. No, he was with Gay Sterns and Gordon Michaelson when he went to the lavatory. . * * *
“Q. And at any time during that evening, did you ask the barmaid to check Walters’ pocket for his billfold? A. Yes, after Lee told me to ask Katherine I asked Katherine if he had his money, and she checked and it wasn’t there.
“Q. Did you do anything after that? A. Who?
“Q. You. A. I called the cops.”
On her cross-examination Carol was interrogated and she made answer as follows:
“Q. And did you see him (defendant) do anything that would lead you to believe that he reached into Walters’ pocket *354and took his wallet? A. Well, I don’t know, bnt be acted pretty funny to me.
“Q. Did you see him? A. No, I didn’t see him do anything like reaching in his pockets.
‘ ‘ Q. I understand that you asked the barmaid to look in his pocket, into Walters’ pocket to see if the money was there? A. Yes.
“Q. Now, did you look on the floor of the barroom under the seat where Walters was sitting? A. I didn’t.
“Q. Well what was the reason that you called the officers? A. Well, because he had the money. The waitress said that she put the wallet in his pocket and buttoned it, and when she looked, why, it wasn’t there — it was gone — so I called the cops.
“Q. You base that call on the fact that Ed sat down along side of Walters at the bar, is that correct? A. Yes.
“Q. You didn’t look on the floor to see if the wallet could have fallen on the floor? A. I didn’t. I don’t know whether anybody else did or not.
“Q. You didn’t check to see if that could have happened, is that correct? A. No.
“Q. You, didn’t look? A. No.
“Q. Did the bartenders look on the floor? A. I don’t know.
“Q. No one looked on the floor to see if the wallet could have been there? A. I didn’t notice. I don’t know — I didn’t look.
“Q. Did the barmaid say she had seen Ed take the purse? A. No, she didn’t say she saw him.
"Q. Was there any reason why you called the police and accused Ed of taking this purse? A. I can’t say.
“Q. You have no reason? A. No.
“Q. Well, as you are sitting there, can you say that Ed took that purse? A. I coxildn’t prove it if I didn’t see it. * * *
“Q. Did you accuse anyone in that conversation of robbing Walters? A. 1 don’t think so.
‘ ‘ Q. Can you detail to the jury what you did say ? A. No.
*355“Q. Do you know that shortly after you did call, the officers came down? A. Yes, they came down. * * *
‘ ‘ Q. What did you say to them when they came down there ? A. Why, I told them that I thought Edward Peschon had gotten away with Walters’ money. * * *
“Q. But you didn’t see Ed take that money? A. No, I didn’t see him take the money. I couldn’t see his hands. * * *
“Q. Did anyone else in the barroom, after the officers got there at your request, say to the officers or accuse anyone of taking Walters’ money? A. I don’t think so.
“Q. You were the only one in the bar that made the accusation, is that correct? A. I didn’t hear what everybody else said.
“Q. Weren’t you right there talking to the officers? A. Yes, but they were talking to other people and asking them questions. I didn’t pay any attention to what they said.
“Q. Did you hear anyone else im, the barroom that Night accuse Ed of taking the money? A. No.
“Q. As far as you know, you are the only one that made a complaint? A. As far as I know maybe somebody else did, but I don’t know.
“Q. How old are you? A. Nineteen.”
Katherine Immel, the bartender at the Stockman’s Bar, was the state’s fourth witness. On her direct-examination she testified: That on Sunday, January 1st, she alone worked the evening shift at the Stockman’s Bar in Chinook, commencing at 5:30 p.m.; that at about 11:00 o’clock that night Richard Walters entered the place and sat down at the bar and that she observed he was carrying his money in a billfold.
On her direct-examination by the county attorney, the witness Katherine Immel testified:
“Q. Now at any time that evening, did you handle Mr. Walters’ billfold? A. Yes, sir.
“Q. And can you state now about what time that might have been — what time that evening? A. It was right after he came in.
*356“Q. And what was the purpose of your handling the billfold? A. He was pretty well intoxicated, and I was busy, and he handed his billfold to me, and I took out a twenty dollar bill for a drink, and I put the paper money back in the billfold and left the silver on the bar.
“Q. At that time, did you observe whether there was any money in the billfold? A. There was quite a bit; I couldn’t say how much.
"Q. Did you observe what kind of money it was? A. Twenties. * * *
“Q. Bid you count the number of twenty dollar bills? A. No, sir.
‘ ‘ Q. Could there have been more than five or six ? A. There could have been.
“Q. What did you do wdth the billfold? A. I put it back in his pocket and buttoned it.
“Q. Was this money in his .billfold at the time you put it back in his pocket? A. Yes, sir — all but the change.
“Q. All but the silver? A. Yes.
“Q. Can you, state whether or not Mr. Walters bought any di'inks after you had put the billfold back? A. No, sir, he passed out then.
“Q. Did you see either Lee Falcon or Carol Falcon in the bar that night? A. Yes, sir.
“Q. And do you remember now when they came in? A. No, I couldn’t say.
“Q. Were they there at any time when Mr. Walters was in there? A. Yes, sir.
‘ ‘ Q. And do you recall now where they sat at the bar relative to Mr. Walters? A. They were sitting on the left-hand side — there was one stool between them.
“Q. You mean the left-hand side of Walters? A. Yes.
“Q. Do you recall now which of the two Falcons was sitting closer to Mr. Walters? A. Carol.
“Q. Can you state whether or not the Falcons were sitting *357as you have now said at the time Walters passed out? A. That’s right, and they left right after that.
“Q. They were at the bar at the time Walters passed out? A. Yes, sir.
“Q. Did you notice what Walters did when he passed out? A. He laid down on the bar and went to sleep.
“Q. At any time during the night of January 1, did you see Ed Peschon in the Stockman’s barf A. Yes, sir. * * *
“Q. Did you see him there at any time while Mr. Walters was there? A. Yes, sir.
“Q. And where was he at that time? A. Right-hand side.
“Q. Walters’ right-hand side? A. Yes, sir. * * *
“Q. Was he seated on a stool at the bar? A. Yes, sir.
“Q. I am referring to Peschon, now? A. Yes, sir.
“Q. Where was the stool on which he was seated in relation to the one that Walters was on? A. There was one empty stool between them.
“Q. An empty stool between Peschon and Walters? A. Yes, sir.
“Q. Did you observe anything at all that might have gone on between Peschon and Walters? A. No, sir.
“Q. (Continuing) while they were there? A. No, sir.
‘ ‘ Q. Did you observe how long Peschon was at the bar ? A. Not very long after they called the cops. * * *
“Q. At any time before the cops, or the police were called, did you check the pocket of Walters where you had placed the billfold? A. Yes, sir.
“Q. Why did you do that? A. Carol and Lee told me that the money was gone, so I looked and it was.
“Q. Was the billfold, also gone? A. Yes, sir.”
There is no evidence whatever that anyone other than Walters himself and Katherine Immel, the bartender, ever had possessed or even touched Walters’ billfold or money.
All the witnesses agree that at the time he was in the Stock-man’s Bar, Walters was in a thoroughly intoxicated condition *358and long past the stage where it was lawful for any bar owner or employee to sell him any liquor.
E.C.M. 1947, section 4-160 provides.- “No vendor * * * nor any employee of a vendor * * * shall sell any liquor, or permit any liquor to be sold, to any person apparently under the influence of liquor.”
E.C.M. 1947, section 4-413, provides.- “No licensee or his or her employee or employees, nor any other person, shall sell, deliver, or give away or cause or permit to be sold, delivered or given away any liquor, beer or wine to:
“1. Any person under the age of twenty-one (21) years.
“2. Any intoxicated person or any person actually, apparently or obviously intoxicated. * * *”
It is quite apparent that Walters was actually and obviously intoxicated and so far gone that he could neither open nor close his billfold nor identify nor count its contents. Yet, with the aid of a most obliging bartender he continued to buy liquor for himself and his associates until he passed out and went to sleep on the bar. See E.C.M. 1947, section 4-159, subd. 2.
Again the law was violated in selling, delivering or giving away liquor or in permitting it to be sold, delivered or given to the state’s teen-age witness Carol. See E.C.M. 1947, sections 94-35-106 and 4-413, subd. 1.
It was Lee Falcon and Carol who first discovered that Walters had neither billfold nor money which discovery they reported first to the bartender Katherine, who had handed Walters his last drink, and next to the police.
On her cross-examination Katherine Immel testified:
“Q. Now, I believe you stated that Walters handed his wallet to you at one time? A. Yes, sir
‘ ‘ Q. What size of a bill did you take out ? A. Twenty dollar bill. * * *
“Q. About how long was it between the time you put that wallet back in his pocket and When Carol Falcon made this complaint? A. I would say about ten minutes. •
*359“Q. Now during that interval, I understood you to say that Ed Peschon was in the bar? A. Yes, sir.
“Q. He was seated on a stool at the bar? A. Yes, sir.
“Q. And had he ordered a drink? A. Yes, sir.
‘ ‘ Q. And did I further understand you to say that there was one empty stool between him and Walters? A. At that time, yes, sir — when he ordered the drink.
“Q. He never got any closer than one stool removed from Walters? A. Not that I recall.
“Q. After he had ordered this drink, do you recall how long he stayed in the bar? A. Not very long. Oh, ten minutes, maybe.
“Q. And at that time while you were there serving that drink and while Walters was passed out on the bar, were there other customers in the bar? A. Yes, sir.
“Q. About how many? A. I would say about fifteen or twenty.
‘1Q. And everything was in full view of all of those customers, was it not? A. Yes.
“Q. Did you observe anything that would lead you to believe that Ed Peschon took this purse from Walters’ pocket? A. No, sir.
“Q. You were observing the bar all during the time that Peschon was in the bar? A. Yes.
As stated at the outset of this opinion the modus operandi in State v. McCarthy, supra, closely parallels that in the instant case of State v. Peschon.
The McCarthy Case. The evidence in State v. McCarthy, supra, showed:
William Wright, a resident of Pony, Montana, arrived in Butte between 2:00 and 3:00 o’clock on the morning of January 9, 1907. He went to bed at a rooming house near the railroad depot in South Butte and arose about 7:00 o ’clock the same morning when he took two drinks of whisky, had breakfast, met a stranger called “the Frenchman” and then went to the central part of Butte where he again met “the Frenchman”- with whom *360lie had a drink or two and then at about 1:00 p. m. Wright and “the Frenchman” returned to South Butte on the streetcar together.
Wright then “knocked around” for a few hours and finally-entered McCarthy’s saloon where he liad another drink or two with ‘ ‘ the Frenchman. ’ ’
Wright then accompanied McCarthy to a wine room in the rear of the saloon where McCarthy introduced Wright to a woman known as May Miner for whom Wright bought three or four drinks. Thereafter May Miner bought a drink for Wright. Upon downing this drink, Wright immediately passed out and knew and remembered nothing for about four hours. When Wright lost consciousness he was in the wine room. When he finally woke up he was out in the bar rom sitting in a chair and there were several other persons in the barroom at such time.
At the time he was introduced to the woman, Wright wore two pair of overalls. In the pocket of the inner pair he had a pocketbook containing about $110. When he woke up in the barroom he felt for his money and found his pocketbook had been taken from his inner overalls pocket and placed in a pocket of the outer pair and that the money was all gone with the exception of $3 or $4. Wright did not know where he may have been between the time he went to sleep in the wine room, after taking his last drink with the woman May and the time he was awakened while sitting in a chair in the barroom.
The Peschon Case. The evidence in the instant Peschon ease showed:
Richard W. Walters, who resided at the McLeish ranch, arrived in Chinook late Saturday evening, December 31, 1954. He spent Saturday night' and at least until 2:00 o’clock Sunday morning traveling from bar to bar drinking and buying drinks for others.
In the course of his travels Saturday night Walters met the state’s witness Lee Falcon at the Elks bar in Chinook.
Sometime after 2:00 o’clock on Sunday morning, January 1, 1955, Walters went to bed at the Chinook hotel. He arose about *3618:00 o ’clock the same morning, had breakfast and then when the bars opened, he again traveled from bar to bar drinking and buying.
The witness Mrs. Gorman testified that on Sunday afternoon, January 1st, from about 3 :00 o’clock until 6 :00 o’clock when her shift as barmaid ended, Richard Walters was in the Elks bar with Lee Falcon for whom Walters bought drinks ail afternoon and that at 6:00 o’clock when she went home Lee Falcon “was still there * * * but Walters had passed out.”
Later that same Sunday night Lee Falcon and the girl Carol seated themselves near Walters at the Stockman’s Bar at which time Lee Falcon introduced Walters to Carol. Walters was “pretty drunk” but nevertheless he bought one drink each for Falcon, Carol and himself. Immediately upon taking his drink Walters passed out and he remembers nothing until he woke up in the police station Monday morning, January 2, 1955, only to find that he had lost his billfold, his money, his week-end and that his spree was over.
The rule in this jurisdiction as to the amount, kind and character of evidence required in order to sustain a verdict and judgment of conviction upon circumstantial evidence and what amounts to “substantial evidence” sufficient to support such a verdict and judgment has been frequently announced and applied by this court. See: State v. Allen, 34 Mont. 403, 415, 87 Pac. 177; State v. McCarthy, supra; State v. Whorton, supra; State v. Foster, supra; State v. Welch, 22 Mont. 92, 98, 99, 55 Pac. 927; State v. Northern Pac. Ry. Co., 41 Mont. 557, 562, 111 Pac. 141; State v. Suitor, 43 Mont. 31, 114 Pac. 112; State v. Taylor, supra; State v. Sieff, 54 Mont. 165, 168 Pac. 524; State v. Postal Telegraph Cable Co., supra; State v. Mullins, supra; State v. Brower, 55 Mont. 349, 177 Pac. 241; State v. Riggs, supra; State v. Cooper, 78 Mont. 35, 252 Pac. 376; State v. Schrack, 60 Mont. 70, 198 Pac. 137; State v. Woolsey, 80 Mont. 141, at pages 158, 159, 259 Pac. 826; State v. Konon, 84 Mont. 255, 274 Pac. 1060; State v. Hood, 89 Mont. 432, 436, 437, 298 Pac. 354; State v. Ebel, 92 Mont. 413, 15 Pac. (2d) 233; State *362v. Lund, 93 Mont. 169, at page 184, 18 Pac. (2d) 603; State v. Gilbert, 126 Mont. 171, 246 Pac. (2d) 814; State v. Elmore, 126 Mont. 232, 247, Pac. (2d) 488.
In State v. Riggs, 61 Mont. 25, at pages 51, 52, 53, 201 Pac. 272, at page 280, this court said:
“We are committed to tbe doctrine that — ‘A. defendant may not be convicted on conjectures, however shrewd, on suspicions, however justified, on probabilities, however strong, but only upon evidence which establishes guilt beyond reasonable doubt; that is, upon proof such as to logically compel the conviction that the charge is true’. [Citing eases]. * * *
“Where an act may be attributed to a criminal or an innocent cause, it will be attributed to the innocent cause rather than the criminal one. [Citing case].
“The evidence is entirely circumstantial, and in our opinion is not adequate to support the verdict; the testimony not being sufficiently strong and convincing to exclude every rational hypothesis other than the defendant’s guilt. * * *
“But where a conviction is sought solely upon circumstantial evidence, the criminatory circumstances proved must be consistent with each other and point so clearly to the guilt of the accused as to be inconsistent with any other rational hypothesis. [Citing cases].
“The nature of circumstantial evidence being such that a certain conclusion or state of facts is sought to be inferred from the establishment of other facts, it is necessary, not only that the guilt of the accused be consistent with those facts but they must exclude every reasonable hypothesis other than his guilt; ■or as it is sometimes expressed, they must be susceptible of explanation upon no reasonable hypothesis consistent with the innocence of the accused. The reason for this is that as long as ■circumstances are capable of two or more explanations, one consistent and the other inconsistent with his innocence, the evidence does not fill the test of moral certainty, and is therefore insufficient to convict. * * *
“We are not unmindful that we are limited on our review *363to an examination of tlie record to determine whether there is any substantial evidence to justify the verdict. [Citing case]. But where the evidence is unsubstantial, or is wholly lacking in material particulars, or where it is meager, fragmentary, disconnected and speculative, as in this case, it is insufficient; and when a conviction results, based on such testimony, this court will not hesitate to set aside the verdict. * * * It is far better that a guilty man should go unpunished, than that an innocent person suffer punishment based on such evidence.”
The rule as to the amount, kind and character of evidence required in order to sustain a verdict and judgment of conviction upon circumstantial evidence, or rather what amounts to “substantial evidence” has been frequently announced and applied by this court.
In State v. Konon, 84 Mont. 255, at pages 261-263, 274 Pac. 1060, at page 1061, this court said:
“Conceding the truth of all such circumstantial evidence, it does not establish the defendants’ guilt beyond a reasonable doubt, and therefore the judgment cannot be permitted to stand. In order to justify conviction, guilt must be established beyond a reasonable doubt. * * * A person charged with crime ‘is presumed to be innocent until the contrary is proved, and in case of a reasonable doubt whether his guilt is satisfactorily shown, he is entitled to an acquittal’. * * * And the law is settled in this jurisdiction that ‘ a defendant may not be convicted on conjectures, however shrewd, on suspicions, however justified, on probabilities, however strong, but only upon evidence which establishes guilt beyond reasonable doubt, that is, upon proof such as to logically compel the conviction that the charge is true’. [Citing cases]. * * *
“The settled rule is that, in order to sustain a conviction on circumstantial evidence, all the circumstances proved must be consistent with each other, and with the hypothesis of the defendant’s guilt, and at the same time inconsistent with any other rational hypothesis. [Citing case]. The evidence is wholly circumstantial, and in our opinion, insufficient to sustain the *364verdict. It fails altogether to meet the requirements of the rule just stated. It must appear to a moral certainty that the crime was committed by the accused and no one else. [Citing cases]. And where, as here, there is no substantial evidence to support the judgment, it becomes our duty to set it aside. [Citing case]. ’ ’
In Gardner v. State, 27 Wyo. 316, 196 Pac. 750, 752, 15 A.L.R. 1040, which cites the case of State v. Mullins, supra, the supreme court of Wyoming said:
“Where circumstantial evidence is relied upon for conviction, it must be of such a character that it leads to but one fair and reasonable conclusion, pointing to the defendant to the exclusion of all others as the guilty person. ’ ’
The evidence in the instant ease does not meet the above requirement. It does not point to the defendant Edward Peschon to the exclusion of all others as the person guilty of slipping Walters the drink that knocked him out and then relieving him of his roll, if any.
In my opinion defendant’s motion to request the jury to return a verdict of acquittal made at the conclusion of the state’s ease, and his motion for a new trial should have been granted. Under the above cited decisions of this court there is insufficient evidence to sustain the verdict. The verdict and judgment are contrary to both the law and the evidence and they, together with the order appealed from, should be reversed and the cause be remanded to the district court with directions to grant a new trial or to dismiss.