State v. Korth

164 N.W. 93, 39 S.D. 365, 1917 S.D. LEXIS 152

Opinion

McCOY, J„

Decision affirming the judgment of the lower court appears in 162 N. W. 144. Upon rehearing.we are of the opinion that a new trial should be granted. One of the questions raised by the assignments of error was that the evidence was insufficient to connect the appellant with the commission of the offense charged. The evidence was mostly circumstantial, and was of such a nature that the conclusion of guilt does not logically or naturally follow therefrom. While we are of the view that there was no positive or clear error shown to- have been committed on the trial, still we are of the opinion that the circumstantial evidence adduced on the trial upon the vital issue of connecting the defendant with the commission of the offense charged was uncertain, weak, and unsatisfactory to such an extent that it should not be held sufficient to produce an abiding conviction of guilt, beyond all reasonable doubt, of such a serious offense.

The judgment appealed from is reversed, and the cause remanded for new trial.

SMITH, J. I adhere to my dissent in the former decision in this case, but concur in the view that a new trial should be granted.