Appellants were charged and convicted of the crime of injuring the county jail in Canyon county, under C. S., sec. 8562, which provides:
"Every person who wilfully and intentionally breaks down, pulls down or otherwise destroys or injures any public jail or other place of confinement, is punishable by fine not exceeding $10,000, and by imprisonment in the state prison not exceeding five years." *Page 7
The facts are as follows: In the Canyon county jail there is a comparatively large room which is called the kitchen. Opening out of this room is a narrow corridor, on each side of which are the cells. There is a steel door between the kitchen and the corridor. On the night of August 7, 1927, there were from ten to thirteen prisoners confined in the jail. The door between the kitchen and the corridor was open and none of the prisoners were confined in the cells. All of the prisoners in the jail had free access to the kitchen. On the morning of August 8, 1927, when the jailer visited the jail about 8 o'clock, he discovered a hole in the ceiling of the kitchen. Two prisoners, appellants, were missing. It appeared that probably some sort of pry had been used to bend a corner of a steel sheet composing a portion of the ceiling of the kitchen, leaving an opening large enough to permit a man to pass through.
Appellants assign as error insufficiency of the evidence to sustain the verdict and judgment, in that there is no evidence that appellants, or either of them, injured the county jail, as set out in the information, or aided, abetted, encouraged or advised such injury, and that there is no evidence to identify appellants as being connected in any way with injurying the county jail as alleged in the information, or as escaping therefrom.
That part of the assignment of error raising the question of the sufficiency of the evidence to show that appellants escaped from the county jail is without merit. However, they were not prosecuted for the crime proved under C. S., sec. 8150, — "every prisoner confined in any other prison than the state prison, who escapes or attempts to escape therefrom, is guilty of a misdemeanor." The evidence would have been ample to sustain a conviction under this section, but it is wholly insufficient to sustain the conviction under C. S., sec. 8562. There is absolutely no proof in the record that appellants, or either of them, made or in any manner were connected with the making of the hole in the ceiling of the kitchen in the jail through which they are said to have escaped. The hole may have been made by any *Page 8 one or more of the several other prisoners, or it may have been made by some person or persons outside the jail, or it may have been made by one of the appellants and not by both. The only fact in evidence is that a hole was made in the ceiling through which appellants are presumed to have escaped. There is no direct evidence even that they escaped through this hole, but conceding they did escape through the hole and that their escape is a circumstance in evidence against them, the conviction based upon this circumstantial evidence is not sufficient to uphold a conviction of a felony, under C. S., sec. 8562.
In order to sustain a conviction based solely on circumstantial evidence, the circumstances must be consistent with the guilt of the defendant and inconsistent with his innocence, and incapable of explanation on any other reasonable hypothesis than that of guilt. (State v. Marcoe, 33 Idaho 284,193 P. 80.) In explaining the foregoing rule of law, this court said, in State v. McLennan, 40 Idaho 286, 231 P. 718:
". . . . if all the material circumstances in evidence point to guilt and exclude any reasonable hypothesis except that of guilt — in other words, if they are inexplicable on the theory of innocence — a conviction is warranted."
The circumstances in this case are not inconsistent with the innocence of appellants of the crime charged, and are capable of explanation. One or more of the several other prisoners confined in the jail may have made the hole in the ceiling and then abandoned the plan of escape, or the hole may have been made by one of the appellants and not by both (query, which one?), or the hole may have been made by someone outside of the jail. There is nothing more than a mere suspicion that, based upon the theory that appellants escaped through the hole in the ceiling of the kitchen in the jail, they made the hole. Where the evidence is sufficient to establish only a suspicion of guilt, the defendants should not be convicted, and the jury should be so charged. (State v. Marcoe, supra; 16 C. J., p. 996, sec. 2409.) To warrant a conviction, the evidence must *Page 9 identify the accused as the person who committed the crime charged, and identity must be established beyond a reasonable doubt. (16 C. J., p. 774, sec. 1584.) There is not a scintilla of proof in this record which one, if either of the appellants, made the hole in the ceiling. The rule is that even if it be proved that one of two or more persons committed the crime, yet if it is uncertain which is the guilty party, all must be acquitted. (Campbell v. People, 16 Ill. 17, 61 Am. Dec. 49;People v. Woody, 45 Cal. 289.)
The majority opinion likens this case to one where a person is charged with larceny for the possession of recently stolen property, and it is said: "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 other words, it is intimated if not expressly held that the burden rested upon appellants to establish, in order to warrant their acquittal, that some person or persons other than themselves made the hole through which they escaped. Of course appellants were not required to make any explanation, the burden resting upon the state to establish their guilt beyond a reasonable doubt, and the rule of law with regard to the unexplained possession of recently stolen property as an incriminating circumstance from which guilt may be inferred has no application to such a case as this.
Appellants were charged under a statute to show the violation of which there is no competent proof. They should have been charged with the violation of C. S., sec. 8150, for escape from the jail, to show which the proof is ample. The confinement of appellants in the penitentiary for a period not exceeding five years is not warranted under the evidence, and the judgment should be reversed with proper directions. *Page 10