Thе appellant was convicted of the crime of trаnsporting intoxicating liquors in Bannock county, Idaho. The only question raised by this appeal is the sufficiency of the evidence to sustain the judgment.
Dorsey Nichols, a deputy sheriff residing at Soda Springs, testified that on the evening of .the 8th of January, 1918, he went to the depot at Soda Springs and found a box in the bаggage-room which contained whisky. He says: “I thought it was Marcoe’s.” He immediately got in touch with Marcoe, and the following is his story of the conversation: “I asked him if the box in the depоt was his. He says it wasn’t; that he didn’t know anything about it. I told him that was all then.” Thе evidence does not show how the box came to be at the depot, only that it bore a baggage cheеk which showed that it came from Lima, Montana. The box had thе appearance of a tool-chest. The appellant was a plumber, working at his trade in a hotel building аt Soda Springs. Several months prior to this time he had been еngaged in similar .work at'Lima, Montana. The evidence shows that he had received several shipments of plumber’s supplies, and usually received a shipment about once a week. On the following day the box was opened and found to contain a partition or tray constructed of lumber which had been taken from crating or supplies shipped to appellant. Upon one of the pieces of this crating was printed “E. E. Marcoe, Soda Springs.” It was shown that bоards so marked were thrown about indiscriminately at Soda Sрrings, and obtainable by anyone. On the morning of January 8th, according to the testimony of the station agent, Marcoe called at the depot and told him he was expecting a box and that as soon as it arrived he wished to be notified. On the 9th the appellant again called on the station аgent and asked him
Thе foregoing is all the testimony which had any tendency to connect appellant with the crime charged. It is sufficient tо create a suspicion of the guilt of appellant. But all of the evidence introduced, tending to conneсt appellant with the crime, was circumstantial. In order to sustain a conviction based solely on circumstantial evidence, “the circumstances must be consistent with the guilt of thе defendant and inconsistent with his innocence, and incapable of "explanation on any other reasonаble hypothesis than that of guilt.” (Broshears v. State (Okl. Crim. App.),
If the evidence can be reconciled either with the theory of innocence or of guilt, the law requires that the theory of innocence bе adopted. (Vernon v. United States,
Applying this rule to the case at bar, it appears that the evidence is insufficient to sustain the verdict. The judgment must be reversed and a new trial ordered.