The appellants were convicted of felony in injuring the county jail of Canyon county.
No question other than the sufficiency of the evidence to sustain the verdict is presented. The evidence upon which the plaintiff relied to connect the appellants with the offense was wholly circumstantial. There was no explanation or denial of any incriminating circumstances testified to by witnesses for the plaintiff. Appellants contend their guilt has not been established to that degree of certainty required where the evidence is circumstantial. The facts testified to are: That on the night of August 7, 1927, there were from ten to thirteen prisoners confined in the jail. All of them had free access to a room known as the kitchen. On the morning of August 8 the jailer discovered that the metal *Page 4 ceiling had, during the preceding night, been pried down in one corner of the kitchen from an attack made from within and that the appellants were missing. No other prisoners escaped. Appellants were apprehended some two days later at Huntington, Oregon, and were returned.
Appellants argue that the circumstances are consistent with defendants' innocence and do not exclude every reasonable hypothesis except guilt and point out that the hole may have been made for the purpose of escape or may have been made by one prompted by motives of malicious mischief; that if made for the purpose of escape the person who made it may have abandoned his plan to escape and appellants may have concluded to adopt for the purpose of escape the easy means so made available; that the evidence does not disclose that the joint efforts of two men were required to commit the offense and it is not shown whether the offense was committed by the two defendants or by either aided and abetted by the other.
Of the sufficiency of circumstantial evidence this court inState v. McLennan, 40 Idaho 286, 302, 231 P. 718, among other things said:
"The evidence need not demonstrate the guilt of the defendant beyond the possibility of his innocence; and if the circumstances as proved produce a moral conviction to the exclusion of every reasonable doubt they need not be absolutely incompatible, on any reasonable hypothesis, with the innocence of the accused."
The above statement was quoted with approval in State v.Dawn, 42 Idaho 210, 245 P. 74.
The value of circumstances as evidence depends upon the degree of certainty with which they point to a particular conclusion. While such evidence to be sufficient must create more than a suspicion of guilt, a mere possibility of innocence will not avoid a verdict where the conclusion or inference of guilt is logical.
A theory of innocence must be rational and must find its support in facts. We are not required to adopt an unreasonable theory or one not fairly founded upon evidence. *Page 5 We are not required to give to circumstances a strained or artificial construction in determining whether they are consistent with innocence.
The weight and effect to be given to circumstances pointing toward guilt, the inferences to be drawn therefrom, the extent to which the circumstances are consistent with guilt and inconsistent with innocence and the reasonableness of any claim, or projected hypothesis, of innocence are questions primarily for the jury. They are but matters to be considered by the jury in determining whether the evidence is sufficient to establish guilt beyond a reasonable doubt.
There is in the evidence no basis for the contention that the hole in the ceiling was made by one prompted by a desire to destroy or was made for any purpose other than to facilitate escape or that it was originally made by another prisoner with the idea of escaping and that he abandoned his plan.
The hole in the ceiling was well designed to be used as a means of escape. That physical exertion in an uncomfortable position was required to make it and that it was promptly used as a means of obtaining liberty well justify the inference that it was made with such use in mind. No other conclusion is reasonable. The defendants were jointly benefited by the crime committed. They promptly and alone used the hole to make their escape. Their conduct furnishes evidence of motive on their part in injuring the jail and satisfactory evidence of motive is of much aid in establishing identity. Except for the equal opportunity the other prisoners had to commit the crime of which appellants were convicted, there is no circumstance in evidence which would permit of doubt as to their guilt.
On principle, the fact that the defendants escaped through the hole and were the only prisoners who did should receive the same weight as an incriminating circumstance as the fact of possession of stolen property receives in larceny prosecutions. In the case of State v. Bogris, 26 Idaho 587, 144 P. 789, an instruction, to the effect that the unexplained *Page 6 possession of recently stolen property is a strong incriminating circumstance tending to show guilt, was considered and of it this court, speaking through Mr. Justice Budge, said:
"We are of the opinion that the instruction is also fully supported by the case of State v. Sanford, 8 Idaho 187,67 P. 492, which announced 'the rule of law that possession of recently stolen property is a circumstance from which, when unexplained, the guilt of the accused may be inferred.' "
In that case the defendant and four other persons had equal opportunity to commit the offense and the only incriminating circumstance pointing to the defendant, to the exclusion of the others, was his unexplained possession, some six weeks later, of the fruits of the crime. Here the defendants and some eight or ten other men had equal opportunity to commit the offense. The incriminating character of the fact of escape is stronger here than the circumstance of possession in the Bogris case for here the escape was immediate while in the Bogris case the defendant was not shown to have been in possession of the stolen property earlier than six weeks after the burglary.
From all the facts, including the unexplained fact of escape, the jury concluded that the inference of guilt of both was logical. We cannot say it is not.
The judgment appealed from is affirmed.
Wm. E. Lee, C.J., and Givens, J., concur.
Petition for rehearing denied.