Mabky, J.:
The State relies entirely upon circumstantial evidence to connect the accused with the burning of the cotton house. That this character of evidence may establish guilt is beyond question, and our own court [248]*248lias approved the statement that “a well connected train of circumstances is as conclusive of the existence of a fact as is the greatest array Of positive evidence.” Whitfield vs. State, 25 Fla., 289, 5 South. Rep., 805. The value of this kind of evidence consists in the conclusive nature and tendency of the circumstances relied upon to establish any controverted fact. They must not only be consistent with guilt, but must be inconsistent with innocence. Mr. Starkie says, in liis book on Evidence, that “such evidence is always insufficient, where, assuming all to be proved which the evidence tends to prove, some other hypothesis may still be true; for it is the actual exclusion of every other hypothesis which invests mere circumstances with the force of proof. Whenever, therefore, the evidence leaves it indifferent which of several hypotheses is true, or merely establishes some finite probability in favor of one hypothesis rather than another, such evidence can not amount to proof, however great the probability may be.” 1 Starkie on Evidence, 444. Again, 'this author says, on page 447, same volume: “Wliat circumstances will amount, to proof can never be matter of general definition ; the legal test is the sufficiency of the evidencie to satisfy the understanding and conscience of the jury. On the one hand absolute, metaphysical and demonstrative certainty is not essential to proof by circumstances. It is sufficient if they produce moral certainty to the exclusion of every reasonable doubt; even direct and positive testimony does not afford grounds of belief of a higher and superior nature.”
[249]*249Traces, marks or indications discovered at or near the scene of the crime tending to connect the accused with them, and pointing to him as the guilty agent,, may be shown in evidence to establish the charge against him. Among these indications, foot prints found at or near the place where the crime was committed, along with the discovery of the crime, corresponding with the tracks of the accused, are most frequently resorted to for the purpose of identifying him as the guilty party. Burrill on Circumstantial Evidence, 264; Wharton's Criminal Evidence, sec. 796; Young and Griffin vs. State, 68 Ala., 569. The effect or sufficiency of the evidence in reference to correspondence of tracks discovered at or near the scene of a crime with those of the accused, does not seem to be susceptible of being definitely stated. Mr. Wharton says that “the character of foot-prints leading to the scene of murder and their correspondence with the defendant’s feet, may be put in evidence in cases where the defendant’s agency is disputed. Such evidence is not by itself of any independent strength, but is admissible with other proof as tending to make out a case.” Wharton’s Criminal Evidence, 796. Burrill draws a distinction between ordinary foot prints, exhibiting no peculiar characteristics, and those of a rare and peculiar character. He says; “Where no peculiar-marks are observed, but the correspondence thus proved is merely in point of superficial shape, outline and dimensions, and those of the [250]*250ordinary character, it may Serve to confirm a conclusion established by independent evidence, but can not be in itself safely relied on, on account of the general resemblance known to exist among the feet and shoes of persons of the same age - and size. But where certain peculiarities are observed which at once distinguish the impressions from all others, an exact correspondence, verified by the test of comparison, becomes of the highest importance, and the value of sudh coincidences is obviously increased with the number of the peculiar marks observed.” Bnrrill on Circumstantial Evidence, page 267. He also says it is essential that the correspondence between the ' tracks and the feet or shoes of the accused to have a decisive bearing should be proved by actual comparison, as by bringing the two objects into juxtaposition and placing the shoe upon the impression. Ibid.
In Green vs. State, 17 Fla., 669, the only evidence relied upon by the State to convict the accused, was the correspondence of tracks .discovered at or near the house where the offense was alleged to have been committed, and those made by him. The track in question in this case was said to be peculiar in this, that in consequence of. a bent leg of the defendant, in walking the heel of his right foot scarcely touches the ground: The conviction of Green, 'it was held, could not be sustained on the evidence. The opinion, it is true, shows that there was conflict in the evidence for the State in reference to the tracks, and also that [251]*251there was nothing to indicate that the accused made the assault with the intent to rob, with which he was convicted; but still the view is expressed that the evidence of tracks alone was not sufficient to sustain a conviction.
Turning to the testimony in the case before us, and conceding that Wakulla White and Joe Winburn testified to the same facts, we have two witnesses who state that they looked at the tracks made by the accused in the path as he walked up from the ‘ ‘greens patch,” and recognized them to be the same as those seen near the burnt house and in the' field. There was no measurement of the tracks, or actual comparison by placing the shoes of the accused upon the impressions near the house or in the field. The way the witnesses arrived at their conclusion that the tracks were the same was by observing the two tracks some distance apart. The shoe worn by the accused is stated to be about a number eight, but there are no peculiar characteristics mentioned in reference to this shoe. It is true that the witnesses say they recognized the tracks as the same, because the toe of the left foot turned in a little, and the right foot dug up the dirt, but how far these features can be regarded as distinguishing the track in question from all others is uncertain. That the left foot of an ordinary shoe track is turned in a little and the right digs up dirt, can not, we think, be considered as much of a marked peculiarity. The lack of any other unusual and peculiar characteristics, taken in connection with the failure to [252]*252measure the tracks, or test them by actual comparison, •deprives them, standing alone, of the probative force .given to tracks- of marked peculiarities distinguishing them from others -when the correspondence has been verified by the test of actual comparison.
ri’here is one other circumstance against the accused which must be considered in connection with the tracks, and that is, that he was absent from home in the first part of the night in which the house is alleged to have been burnt, and was seen by two witnesses crossing the road near Alf. Rosier’s house in the direction of the burnt house. Leaving out of consideration the statement of the accused, it is clear that he was at the house of Alf. Rosier that night until sometime between ten and eleven o’ clock. The time when the accused got home that night is not very definitely fixed. Mathers says he supposed it was somewhere about ■eleven or twelve o’clock. Mrs. Mathers thought it Wras a little before or about midnight, if not a little later. There was no time-piece in the house. The accused says that he remained at Rosier’s until his return, for the purpose of getting some tobacco sent for that day by Alf. Rosier.
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Mabky, J.:
The State relies entirely upon circumstantial evidence to connect the accused with the burning of the cotton house. That this character of evidence may establish guilt is beyond question, and our own court [248]*248lias approved the statement that “a well connected train of circumstances is as conclusive of the existence of a fact as is the greatest array Of positive evidence.” Whitfield vs. State, 25 Fla., 289, 5 South. Rep., 805. The value of this kind of evidence consists in the conclusive nature and tendency of the circumstances relied upon to establish any controverted fact. They must not only be consistent with guilt, but must be inconsistent with innocence. Mr. Starkie says, in liis book on Evidence, that “such evidence is always insufficient, where, assuming all to be proved which the evidence tends to prove, some other hypothesis may still be true; for it is the actual exclusion of every other hypothesis which invests mere circumstances with the force of proof. Whenever, therefore, the evidence leaves it indifferent which of several hypotheses is true, or merely establishes some finite probability in favor of one hypothesis rather than another, such evidence can not amount to proof, however great the probability may be.” 1 Starkie on Evidence, 444. Again, 'this author says, on page 447, same volume: “Wliat circumstances will amount, to proof can never be matter of general definition ; the legal test is the sufficiency of the evidencie to satisfy the understanding and conscience of the jury. On the one hand absolute, metaphysical and demonstrative certainty is not essential to proof by circumstances. It is sufficient if they produce moral certainty to the exclusion of every reasonable doubt; even direct and positive testimony does not afford grounds of belief of a higher and superior nature.”
[249]*249Traces, marks or indications discovered at or near the scene of the crime tending to connect the accused with them, and pointing to him as the guilty agent,, may be shown in evidence to establish the charge against him. Among these indications, foot prints found at or near the place where the crime was committed, along with the discovery of the crime, corresponding with the tracks of the accused, are most frequently resorted to for the purpose of identifying him as the guilty party. Burrill on Circumstantial Evidence, 264; Wharton's Criminal Evidence, sec. 796; Young and Griffin vs. State, 68 Ala., 569. The effect or sufficiency of the evidence in reference to correspondence of tracks discovered at or near the scene of a crime with those of the accused, does not seem to be susceptible of being definitely stated. Mr. Wharton says that “the character of foot-prints leading to the scene of murder and their correspondence with the defendant’s feet, may be put in evidence in cases where the defendant’s agency is disputed. Such evidence is not by itself of any independent strength, but is admissible with other proof as tending to make out a case.” Wharton’s Criminal Evidence, 796. Burrill draws a distinction between ordinary foot prints, exhibiting no peculiar characteristics, and those of a rare and peculiar character. He says; “Where no peculiar-marks are observed, but the correspondence thus proved is merely in point of superficial shape, outline and dimensions, and those of the [250]*250ordinary character, it may Serve to confirm a conclusion established by independent evidence, but can not be in itself safely relied on, on account of the general resemblance known to exist among the feet and shoes of persons of the same age - and size. But where certain peculiarities are observed which at once distinguish the impressions from all others, an exact correspondence, verified by the test of comparison, becomes of the highest importance, and the value of sudh coincidences is obviously increased with the number of the peculiar marks observed.” Bnrrill on Circumstantial Evidence, page 267. He also says it is essential that the correspondence between the ' tracks and the feet or shoes of the accused to have a decisive bearing should be proved by actual comparison, as by bringing the two objects into juxtaposition and placing the shoe upon the impression. Ibid.
In Green vs. State, 17 Fla., 669, the only evidence relied upon by the State to convict the accused, was the correspondence of tracks .discovered at or near the house where the offense was alleged to have been committed, and those made by him. The track in question in this case was said to be peculiar in this, that in consequence of. a bent leg of the defendant, in walking the heel of his right foot scarcely touches the ground: The conviction of Green, 'it was held, could not be sustained on the evidence. The opinion, it is true, shows that there was conflict in the evidence for the State in reference to the tracks, and also that [251]*251there was nothing to indicate that the accused made the assault with the intent to rob, with which he was convicted; but still the view is expressed that the evidence of tracks alone was not sufficient to sustain a conviction.
Turning to the testimony in the case before us, and conceding that Wakulla White and Joe Winburn testified to the same facts, we have two witnesses who state that they looked at the tracks made by the accused in the path as he walked up from the ‘ ‘greens patch,” and recognized them to be the same as those seen near the burnt house and in the' field. There was no measurement of the tracks, or actual comparison by placing the shoes of the accused upon the impressions near the house or in the field. The way the witnesses arrived at their conclusion that the tracks were the same was by observing the two tracks some distance apart. The shoe worn by the accused is stated to be about a number eight, but there are no peculiar characteristics mentioned in reference to this shoe. It is true that the witnesses say they recognized the tracks as the same, because the toe of the left foot turned in a little, and the right foot dug up the dirt, but how far these features can be regarded as distinguishing the track in question from all others is uncertain. That the left foot of an ordinary shoe track is turned in a little and the right digs up dirt, can not, we think, be considered as much of a marked peculiarity. The lack of any other unusual and peculiar characteristics, taken in connection with the failure to [252]*252measure the tracks, or test them by actual comparison, •deprives them, standing alone, of the probative force .given to tracks- of marked peculiarities distinguishing them from others -when the correspondence has been verified by the test of actual comparison.
ri’here is one other circumstance against the accused which must be considered in connection with the tracks, and that is, that he was absent from home in the first part of the night in which the house is alleged to have been burnt, and was seen by two witnesses crossing the road near Alf. Rosier’s house in the direction of the burnt house. Leaving out of consideration the statement of the accused, it is clear that he was at the house of Alf. Rosier that night until sometime between ten and eleven o’ clock. The time when the accused got home that night is not very definitely fixed. Mathers says he supposed it was somewhere about ■eleven or twelve o’clock. Mrs. Mathers thought it Wras a little before or about midnight, if not a little later. There was no time-piece in the house. The accused says that he remained at Rosier’s until his return, for the purpose of getting some tobacco sent for that day by Alf. Rosier. In this he is partly corroborated by the State witnesses, Sam Rosier and I)oc King, for they say he remained until Alf. Rosier returned home. It does not seem to have been developed how far Alf. Rosier’s house was from either the burnt house or Mathers’ place, and the force of the evidence that accused crossed the road in the direction of the [253]*253burnt house is not strengthened by any showing that he wns near the burnt house at the time. The affirmative showing that the accused was absent from his. home in the first part of the Saturday night, and returned home at a late hour is a circumstance against him. Yet, if the cause of his absence and his whereabouts while absent are shown, and no connection between them and the crime appears, the force of this circumstance is greatly -weakened, if not entirely overcome. Nothing being said about the distance from Rosier’s house to the residence of Mathers, and the time when the accused left Rosier’s and when he arrived at home being so short, there is no room for much unfavorable presumption against him on account of his absence, and especially as it is not shown how much time would be consumed by him in deviating from his course, if such was required, in going and returning from the burnt house. This is left in uncertainty.
There is in the testimony relied upon by the State-an element of weakness that is calculated to impair materially, we think, the force of the legitimate, inferences that otherwise' might flow from 'it. It is brought out by the witnesses for the State that a fence situated about three hundred yards from the house alleged to have been burned by the accused,, was on fire early in the morning of the day the house was discovered to have been burned, and that many persons were there pritting out the file.. Whether the-[254]*254cotton house was burned before or after the fence caught on fire, is not shown, nor is anything disclosed as to the origin of the fire in the fence, although it appears that many persons were there putting it out. We can not infer that the fence caught from the cotton house any more than we can infer that the house caught from the fence, as it is not known which one was on fire first; yet it may be that the fence first caught and the fire was communicated from it to the house. Here again the testimony leaves the matter in uncertainty. Giving due weight to the only two circumstances relied upon to sustain a conviction, as well as the other circumstances attending the case, we think they are not sufficiently conclusive to sustain the verdict, when tested by the legal rules announced in the first part of this opinion. The witnesses had it in their power to make an actual test of the correspondence of the tracks by comparison or measurement, but this they did not do, and in fact did not even inform the accused at the time that he was suspected of the crime. His absence from home on Saturday night is explained, and no contradiction of it. Where the circumstances put in evidence are sufficient to justify an inference of guilt, and a jury returns a verdict upon them, we are not disposed to disturb it; but the circumstances in the case before us are not sufficient in our judgment to. justify a finding against the accused.
[255]*255The judgment of the Circuit Court, is, therefore, reversed, and the cause remanded. Ordered accordingly.