delivered the opinion of the court.
The single question to be determined is, whether there was error in overruling the motion for a neiv trial. The case, briefly stated, is substantially as follows :
The dead body of the deceased was found in the highway on the 13th of August, 1889, with the top of his head crushed and a bullet Avound in the back. His gun was found lying near the body, empty and broken. Both the prisoner and the deceased vvere seen going, that morning, in the direction of an orchard, some distance from their respective residences, a portion of AA'hich belonged to the former and another portion, called “ the dower interest,” AAras in the possession of the latter. There had existed, for some time preAÚous to the homicide, an animosity between them, and each had been heard to threaten to kill the other.
The prisoner Avas accompanied by his tAvo children, aged, respectively, ten and tAvelve years, going to the orchard, AA'itli a horse and a sled, for apples. He also carried his gun. The deceased, aa'Iio likewise carried a gun, folloAved not a great distance behind. The dead body Avas found a feAV hours after-wards, near the orchard fence.
*22A witness, 'W. E. Starks, testified that the same morning he was on a mountain, about- three-quarters of a mile from the orchard, and in view of it, “ coursing bees ”; that while there he heard the prisoner’s voice at the orchard “ swearing, rearing, and charging ”; that he “ saw a person ” in the orchard, and soon afterwards heard the report of a gun, and then a second report, and “ saw smoke rise up ”; that “ immediately after the second shot a man ran and disappeared in the orchard, and then all became quiet.”
On the other hand, both of the prisoner’s children testified, as witnesses for the defence, that they were with their father all the time, and that he did not shoot, that morning, while he was absent from home. The body was first discovered between 10 and 11 o’clock A.. M. They also testified that the prisoner knew nothing of the homicide until several hours after it had been committed, and that before hearing of it he started to get a warrant from a justice of the peace for the arrest of Helms (the deceased). They further testified that while the prisoner was in the orchard gathering apples, two shots were fired at him — they did not see by whom — and that one hall passed through his hat and the other through his shirt. And as this evidence is not in conflict with the commonwealth’s evidence, or with any inferences that the jury could have reasonably drawn therefrom, it is not waived by the demurrer to evidence. Ve say demurrer to evidence because the evidence (not the facts) being certified, the case is to he considered in the apj>ellate court as if there had been a demurrer to evidence, according to the rule of decision prescribed by section 3484 of the Code.
These are the salient points in the evidencé, and we are constrained to the conclusion that the case of the commonwealth is not made out. A dreadful crime, undoubtedly, has been committed, hut that the prisoner committed it is not shown by this record. Every man, in the eye of the law, is innocent until he is proven guilty; and not only is the burden of proving *23the guilt of a person, charged with, crime, on the commonwealth, but to warrant a conviction his guilt must be proven to the exclusion of every rational hypothesis consistent with his innocence. Circumstances of mere suspicion are not sufficient. In other words, the rule, as often stated, is that before the jury •can convict, they must be satisfied, not only that the circumstances are consistent with the prisoner’s having committed 'the crime charged, but they must also be satisfied that the facts are such as to be inconsistent with any other rational conclusion than that he is guilty. “ To doubt,” it has been said, “ is to acquit.”
Applying this elementary test to the present case, it is obvious, without the least discussion of the evidence, that the judgment must be reversed, and the case remanded for a new trial.
Judgment reversed.