
    Alfio Robino v. State of Nebraska.
    275 N. W. 463
    Filed October 22, 1937.
    No. 30126.
    
      Hotz & Hotz, for plaintiff in error.
    
      Richard C. Hunter, Attorney General, and Francis V. Robinson, contra.
    
    Heard before Goss, C. J., Rose, Eberly, Paine, Carter and Messmore, JJ., and Chappell, District Judge.
   Rose, J.

In a prosecution by the state in the district court for Douglas county, Alfio Robino, defendant, was convicted of setting fire to and burning a dwelling-house situated at 1213 South Eleventh street, Omaha, Douglas county, Nebraska. For that felony he was sentenced to serve in the penitentiary a term of not less than two years nor more than three years. As plaintiff in error he presents for review the record of his conviction.

The only question for determination is the sufficiency of the evidence to sustain the conviction. The proofs show that the dwelling-house was destroyed by a fire of incendiary origin, but there is no direct evidence that defendant was the guilty person. The conviction rests on circumstantial evidence. Its sufficiency therefore must be tested by the oft-repeated principle of criminal law that circumstances sufficient to sustain a conviction for a felony must be such as to prove guilt of defendant beyond a reasonable doubt and exclude every other rational hypothesis. The house had been the home of defendant and his family. There is no direct evidence to prove that any one of them was in or near the house immediately before or at the time of the fire. There is evidence they were elsewhere. There is proof that the house was insured, but the interest of defendant in the insurance was inferior to that of others. While there are circumstances pointing to defendant’s guilt, they do not exclude every other reasonable hypothesis, within the meaning of the criminal law. The sentence, therefore, is reversed and the cause remanded for further proceedings.

Reversed.  