Carlos Mendoza was found dead, shot six times in the head, in a stolen car parked in a deserted area оf Portland April 25, 1968. Defendant has been convicted by a jury of first-degree murder, former ORS 163.010, for committing the crime. In aрpealing he lists five assignments of error. The same homicide was involved in
State v. Capitan,
*75 (1).. Sufficiency of the Circumstantial Evidence.
We review the evidence in the light most favorable to the state.
State v. Long,
What is the proper test to be applied in reviewing-a case where the state relies on circumstantial evidence? In
State v. Mitchell,
“ * * must, not meiely coincide with, render probable, and be consistent with, the guilt of the accused, but it must be inconsistent with any reasonаble theory of his innocence and incapable of .explanation upon any other rationаl hypothesis than that of guilt * * State v. Dennis,177 Or 73 , 77,159 P2d 838 ,161 P2d 670 (1945). (Emphasis supplied.)”8 Or App 616 -17.
In. State v. Zauner,
' “In the application of such rule the jufy, of course, is the final arbiter of all conflicts in the evidence The jury is also entitled to draw all reasonable inferences that are capable of being made from the circumstantial evidence. The trial court, and this-court, have., thе difficult task of determining whether the inferences that can be drawn are sufficiently reasonable so as tо amount *76 to evidence proving each material element of the crime beyond a reasonаble doubt.”
The difference between the two standards seems to center around the requirement that the circumstantial evidence “must be inconsistent with any reasonable theory * * * of innocence.” However, this language is just another way of elaborating what is meant by “reasonable doubt.” This court in
State v. Jefferson,
“In our review we do not wеigh the evidence nor make judgments on credibility, nor are we concerned with conflicts in testimony. Our purpоse is to determine whether the inferences which may be drawn from the evidence are sufficiently reasоnable to support a jury verdict. The test set forth in State v. Zauner, supra, is this: Where the evidence is entirely circumstantial, would a reasonable person, based upon all the evidence adduced in the case, be warranted in finding beyond a reasonable doubt that the defendant committed the offense charged?”
There is nothing really inconsistent between these two enunciated standards. Jefferson states our standard of review.
The defendant on appeal urges that the evidence was not of the quality required to support the jury’s verdict. We do not here attempt to weigh thе quality of the evidence. We merely look to see if there is enough evidence that the jury could as reasonable persons have believed beyond a reasonable doubt that the defendant was guilty.
Therе was evidence before the jury that supports the conviction of the defendant. There was testi *77 mony, by way of an admission against interest, that on the night of the murder the defendant said he had shot Mendoza five to eight times. This is enough to support a conviction.
(2) . Admission of Victim’s Hearsay Statements.
The defendant’s second assignment of error is that the trial court еrred in allowing, over objection on grounds of hearsay and relevancy, Mrs. Mendoza to testify to what her husbаnd had said to her when he returned from talking on the telephone shortly before he left his home on the night he was murdered. The court ruled that it was admissible to show the state of mind of the deceased. This was correct undеr the hold: ing of
State v. Farnam,
(3) . Prosecutor’s Comments on Failure of Defendant to Call a Witness.
There were two instancеs when the prosecutor commented upon the defendant’s failure to call Capitan as a witness tо support his alibi defense. Defendant had testified that he was with Capitan at the time of the homicide. This assignment is controlled by the
*78
holding in
State v. Goodin,
(4) . Flight and Concealment.
The court instructed the jury concerning the effect to be given evidence about flight and concealment. The fact that the defendant sought to explain his apparent flight, some six months after the homicide, by showing a legitimate motive for his actions does not prevent the jury from being instructed on the wеight to be given evidence of his flight if they found in fact that he had been fleeing. Unlike the situation in
State v. Bonner,
(5) . Alleged Jury Misconduct.
The trial court refused to grant the defendant’s motion for a new trial based on allegatiоns of jury misconduct. A reading of the transcript of the hearing conducted by the trial judge on this motion reveals thаt there was no coercion of, or misconduct by, the members of the jury.
We find no error and the defendant’s conviction is affirmed.