I think I should not participate in the application by the State for a rehearing in this cause, because being precluded by my absence on account of physical ailments and under medical treatment from hearing the oral argument on the rehearing I deemed it proper not to participate in the reconsideration of the case and the opinion filed September 14, 1931. To have participated then would have been practically to deny to the accused whatever of benefit may have accrued to him by reason of the oral argument. To have denied him that right would not have been consistent with judicial conduct in my judgment. That the reargument in behalf of the accused was persuasive of the legal insufficiency of the evidence to warrant a conviction was evidenced by the fact that one of the Justices, Mr. Justice Brown, who on the first hearing was for affirmance was convinced that the judgment should be reversed. It is illogical therefore to assume that I would have been unmoved by the argument on rehearing.
The rule in relation to circumstantial evidence is correctly stated in the Parish case, supra, that to warrant a conviction the circumstantial evidence when relied upon "must be of a conclusive nature and tendency, leading on the whole to a reasonable and moral certainty that the accused and no one else committed the offense. It is not sufficient that the facts create a strong probability of and be consistent with guilt; they must be inconsistent with innocence."
The inconsistency with the theory of innocence must appear from the circumstances in evidence, and not be the result of hypotheses having no foundation in the record, and the rule does not require that the circumstances in evidence be clearly inconsistent with innocence before a conviction is justified. *Page 1437