
    Norman GANGL v. STATE of Mississippi.
    No. 89-KA-0466.
    Supreme Court of Mississippi.
    Aug. 26, 1992.
    As Modified on Denial of Rehearing Dec. 31, 1992.
    Dissenting Opinion of Justice Hawkins on Denial of Rehearing Dec. 31, 1992.
    Dale H. McDavitt, McComb, for appellant.
    Michael C. Moore, Atty. Gen., Wayne Snuggs, Asst. Atty. Gen., Jackson, Patricia W. Sproat, Columbus, for appellee.
   PITTMAN, Justice,

for the Court:

Norman Gangl was indicted for the offense of armed robbery. Although his first trial was declared a mistrial, he was convicted of armed robbery upon a second trial. On appeal to this Court, Gangl’s conviction was reversed and remanded for a new trial. Gangl v. State, 539 So.2d 132 (Miss.1989) (hereinafter Gangl I). At the third trial, the defense moved the court for a directed verdict as to the crime of armed robbery, and offered to plead guilty to the crime of accessory after the fact. The motion and offer were denied. The defense called two witnesses, rested its case, and then renewed its motion for a directed verdict. This motion was also denied.

The jury returned a verdict of guilty to the crime of armed robbery. The court sentenced the defendant to a term of eighteen (18) years in prison with the first ten (10) to be served and the last eight (8) to be suspended. Aggrieved by the outcome of his third trial, Gangl filed this appeal. We reverse his conviction and render judgment in his favor finding that the evidence was insufficient to support the verdict.

I.

On August 3,1985, at approximately 2:00 p.m., two white males entered the Sav-On drugstore located on Marion Avenue in McComb, Mississippi. At gunpoint, one of the men ordered Marilyn Reeves, a store employee, to empty the contents of one of the cash registers into a paper bag. A second store employee, Tommy McKenzie, was forced to empty a second cash register. The gunmen succeeded in taking $978.00 in cash from the drugstore. The second gunman demanded that Charles East, the store owner, give him specific drugs from the pharmacy. These included Dilaudid, Demerol and Morphine. East proceeded to place the drugs into a “dirty-looking pillowcase.”

The two individuals were described as being white males between the ages of 25 to 30. The store employees testified that one gunman wore blue jeans and a red thermal long sleeved shirt while the other gunman wore jeans and a yellow long sleeved shirt. Each man was armed with a snub nose .38 special, one of which was black and the other silver.

One of the gunmen asked for the keys to a blue 1981 Buick, which belonged to Reeves and was parked in front of the drugstore. Reeves expressed some concern for her car but did hand over her keys. In response to Reeves’ concern, one of the gunmen stated that her car would “be a couple of blocks from here.” Reeves and East were ordered to go behind the counter and lay on the floor.

The gunmen left the drugstore and got into Reeves’ car. After the gunmen left, Reeves called the McComb Police Department. She explained to the police that the gunmen were escaping in a 1981 light blue Buick and gave them the tag number. She also told the police that she thought the men would be within a couple of blocks of the drugstore.

Meanwhile, Barry Bean, owner of Bean’s Sewing Center which is located three blocks from Sav-On, was traveling west on Harrison Avenue and approaching Marion. Just as Bean entered the intersection, he noticed a man run from the front of the drugstore and get into a car that was parked out front. The man got into the passenger side of the car because there was already someone behind the wheel. The car backed up and proceeded east on Harrison Avenue. Bean next saw McKenzie and East come out of the drugstore. McKenzie got into his pickup and went in the same direction as the car carrying the gunmen.

Bean next proceeded to circle the Sav-On drugstore and eventually stopped in the parking lot of Fred’s where he noticed that Reeves’ blue Buick had been abandoned. A short time later, Bean saw two individuals running from an alley along the side of the Fred’s building. Bean stated that one man was wearing only jeans and tennis shoes, while the other one was wearing a red pullover shirt and blue jeans.

The man wearing the red shirt, proceeded across Delaware Street and toward an Exxon station located at the corner of Hart Road and Delaware. The man walked up to the passenger side of a white Chevrolet Monte Carlo. The Monte Carlo had been backed into a parking spot against the building and was facing away from the building. After a minute or two, the man got into the Monte Carlo.

Bean stated that the man was carrying “some type of sack.” Bean lost track of the other man and didn’t know where he went. The Monte Carlo proceeded east on Delaware. Bean met the car head on and noticed two occupants.

At approximately 2:00 p.m., Officers Don LeCour and Steve Rushing were on routine patrol when they came upon the Sav-On drugstore. East was running back and forth in front of the store in a highly agitated manner and explained to the officers that he had just been robbed at gunpoint. Rushing informed police headquarters that there had been an armed robbery and then proceeded in the direction of Fred’s looking for the suspect vehicle. The officers observed a blue car that fit the description of the blue Buick heading towards the interstate. Upon nearing the vehicle the officers realized that there was a family in the car and that it was not the same car that had been involved in the robbery.

Then the officers turned around and proceeded back towards Fred’s. Upon entering the parking lot, the officers again observed a blue car that fit the description first given. Again the officers proceeded to chase the vehicle only to discover that this was not the suspect vehicle.

As the officers proceeded back to McComb, the radio dispatcher informed them that there had just been another armed robbery at Eckerd’s drugstore. The dispatcher, however, was mistaken. Upon entering McComb, the officers were informed by the dispatcher that the suspects were traveling in a white Monte Carlo. The officers observed a vehicle matching that description headed west towards the interstate. The officers observed only one person in the vehicle upon passing it head on. Rushing turned his patrol car around and proceeded to follow the Monte Carlo onto the overpass at Delaware Avenue. The officers attempted to stop the vehicle; however, the car went down an embankment and onto the entrance ramp of Interstate 55. An attempt by Officer C.V. Glyn-nis to shoot the suspect’s tires failed.

Officer LeCour described the driver of the vehicle as having a pony tail and wearing no shirt. He also stated that the driver had numerous tattoos on his arm. LeCour saw only one person in the vehicle.

LeCour and Rushing proceeded to pursue the suspect on 1-55 at speeds of up to 115 MPH. Several other McComb police units joined in the chase. Each time Officer Rushing attempted to pass the Monte Carlo the driver attempted to run him off the road. Finally, Rushing managed to slow him down, but the vehicle crossed the grass median and proceeded to head south in the north bound lane of 1-55. Officer LeCour refused to pursue the Monte Carlo across the median because of the high degree of danger involved. Instead, he proceeded to exit the interstate on the correct side of the highway. Upon exiting the interstate, LeCour observed that the white Monte Carlo had hit a tree and was in a ditch on the side of Highway 24.

Officers LeCour, Rushing and Glynnis took up positions around the area and radioed for backup. Backup arrived, and the area was “sealed off.”

At approximately 4:15 p.m., LeCour observed a subject coming down the entrance ramp. The subject had no shirt and matched the description of the driver of the car. The suspect was arrested by LeCour 250-300 yards from the wrecked car. The suspect was muddy, shirtless, and had fresh scratches about his face and neck. LeCour identified the suspect as Norman Gangl. No other suspects were arrested with Gangl.

A search of the car by investigator Perry Ashley uncovered a large quantity of drugs found in a paper bag. A pillowcase containing a quantity of drugs was also found on the front seat of the Monte Carlo. East identified these drugs as those stolen from the Sav-On drugstore. Ashley also recovered a nickel plated Colt .38 special and a red pullover shirt from the front seat of the Monte Carlo. In an alley near the Sav-On drugstore, Ashley found a. bag of money, a black gun, and a set of car keys which were later identified as belonging to Mrs. Reeves.

II.

Gangl raises several issues on appeal, but only one issue warrants discussion since it is dispositive of this case.

Gangl contends that the evidence was insufficient to support the verdict of armed robbery. In Burge v. State, 472 So.2d 392 (Miss.1985), this Court stated that all evidence, even that which does not support the State’s case, must be considered in the light most favorable to the State. Id. at 396. See also May v. State, 460 So.2d 778, 781 (Miss.1984). “[T]his court must accept as true the evidence which supports the verdict.” Spikes v. State, 302 So.2d 250, 251 (Miss.1974). The State must be given the benefit of all favorable inferences that may reasonably be drawn from the evidence. Glass v. State, 278 So.2d 384, 386 (Miss.1973). See also Johnson v. State, 452 So.2d 850, 853 (Miss.1984); Winters v. State, 449 So.2d 766, 771 (Miss.1984); Bullock v. State, 447 So.2d 1284, 1286-87 (Miss. 1984); Dickerson v. State, 441 So.2d 536, 538 (Miss.1983); Gandy v. State, 438 So.2d 279, 285 (Miss.1983).

Gangl’s main contention is that the State has shown no direct evidence that the appellant was an accessory before the fact. None of the witnesses that testified at trial saw Gangl prior to or during the armed robbery. The first time anyone saw Gangl was approximately 20 minutes after the commission of the armed robbery when Officer LeCour identified Gangl as the driver of the white Monte Carlo.

At trial, there was testimony that Gangl and the two gunmen were all from Birmingham, Alabama. Although one of the gunmen indicated to Reeves that they would leave her car a few blocks away implying that they had a getaway car waiting for them, one cannot infer that Gangl knew what his companions were planning prior to the commission of the crime. For example:

While keeping in mind that each circumstantial evidence case turns on its own facts, and that it is peculiarly within the jury’s province to draw reasonable inferences based upon its own experience and common sense, we have previously rejected the concept of guilt by association. Matula v. State, 220 So.2d 833, 836 (Miss.1969).

Hester v. State, 463 So.2d 1087, 1093 (Miss. 1985) (emphasis added).

In Lewis v. State, 573 So.2d 719 (Miss. 1990), Anthony Wimberly and Frederick Lewis were both convicted of felony shoplifting. On June 5, 1987, they drove from Jackson to Starkville, Mississippi. Later, they drove to the Wal-Mart in West Point. Both Wimberly and Lewis were accused of taking merchandise from the Wal-Mart store. This Court, however, on appeal reversed and rendered Lewis’ conviction.

The facts in Lewis are similar to those in the case at hand. “Lewis was indicted as a principal, not as an accessory after the fact.” Lewis, 573 So.2d at 723. Lewis was never seen inside the store, and the only evidence which connected him to events prior to the crime was the fact that he rode to the store with Wimberly. This Court held:

There is no evidence that he knew that the shop-lifting episode was taking place, nor that it was planned. There is no evidence that he was aware that either Wimberly or Wimberly’s mother was involved in such an episode. The record shows that he did ride with Anthony Wimberly when they left the Wal-Mart store, and that Wimberly was driving at a high speed....
... While we understand that Lewis’s presence and his conduct following the episode at Wal-Mart casts strong suspicion upon him, we are constrained to say that a reasonable juror, properly understanding the responsibilities of that office could not, under the facts disclosed in this record, have found Lewis guilty beyond a reasonable doubt. See Steele v. State, 544 So.2d 802, 809 (Miss. 1989) (the State may prove a crime by circumstantial evidence, but where the case is based wholly on circumstantial evidence, the State must prove the defendant’s guilt beyond a reasonable doubt and to the exclusion of every reasonable hypothesis of innocence).

Lewis, 573 So.2d at 723 (emphasis added) (footnotes omitted).

The State failed to prove Gangl’s guilt beyond a reasonable doubt and to the exclusion of every reasonable hypothesis of innocence. This standard was established as early as 1853 in Algheri v. State, 25 Miss. 584 (1853). In Algheri, this Court stated:

A distinguished writer on the law of evidence has said, that “it 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 truth. 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 cannot amount to proof, however great the probability may be.” 1 Stark, on Ev. 572.

Id. at 589 (emphasis added).

There was no evidence to show that Gangl was aware of his companions’ activities prior to the actual commission of the armed robbery and no reasonable inference from other evidence to show any such knowledge by Gangl. The jury could not on the evidence have found Gangl guilty beyond a reasonable doubt and to the exclusion of every reasonable hypothesis of innocence as an accessory before the fact to the crime of armed robbery. Thus, the evidence presented at trial was insufficient to support the conviction of armed robbery.

As in Lewis, Gangl’s actions after the commission of the crime are certainly suspicious, and there is evidence to support a conviction of accessory after the fact. Gangl, however, was not indicted as an accessory after the fact, and therefore, his conviction of armed robbery must be reversed and rendered.

REVERSED AND RENDERED.

ROY NOBLE LEE, C.J., HAWKINS and DAN M. LEE, P.JJ., and PRATHER, ROBERTSON, SULLIVAN, BANKS and McRAE, JJ., concur.

ON PETITION FOR REHEARING

Petition for rehearing denied.

DISSENTING OPINION ON PETITION FOR REHEARING

HAWKINS, Presiding Justice,

dissenting:

I would grant the petition and affirm Gangl’s conviction.

Delaware Street in McComb is a main, four-lane thoroughfare, running east and west. Marion Road runs north off of Delaware. A block north of Delaware in a one-business building on the corner of Marion Road and Harrison Street, Charles East on August 3, 1985, owned and operated Sav-On Drugs, Inc., a general retail drug store, with ample parking space on the lot surrounding it.

Fred’s Dollar Store was located on the north side of Delaware, its back entrance parking lot about half a block from Sav-On. A filling station was located on the corner of Delaware and Hart Road about half a block from Fred’s.

Around 2:00 p.m. on August 3, 1985, a Saturday, East and Mrs. Marilyn Reeves, an employee, were in the drug store. Tommy McKenzie, another employee, had gone to lunch and was momentarily out of the building. Two young men came into the building. One weighing around 220 pounds had on a “red thermal long-sleeve shirt,” that, according to Reeves, had been turned inside out, and had some kind of emblem on the inside of it. He also had on blue jeans and beige boots. The smaller man was wearing a long-sleeved yellow shirt, jeans and tennis shoes. The larger man had a black pistol, and the smaller man a silver-looking pistol. One of them had a “dirty-looking pillowcase.” They appeared very nervous and excited, and brandishing their pistols, told Reeves and East it was a robbery and demanded drugs and cash. They kept demanding more drugs, specifying: Dilaudid, Demoral, morphine, Schedule II drugs. East told them he did not have but one of these, but it was on the shelf.

After putting drugs in the pillowcase, they told East to lie down. McKenzie came into the building, and one of the robbers told him “to come over here and do what I say or I am going to kill you.” The robbers told Reeves to go to the front of the store and empty the cash register. Reeves emptied one cash register and McKenzie the other, and the money was put in bags. They were told to lie down.

Reeves owned a 1981 model blue Buick with a substitute tag, ZZD-272, on it. One of the robbers demanded her car keys.

Reeves thought the robbers had gone out the front door of the building, and turned to McKenzie and asked out loud, “Why my car, it’s already been stolen once?” When she said that, one of the robbers replied, “Lady, your car will be a couple of blocks from here.”

The large robber was later identified as Kenneth Williams, and the smaller robber Allen Ray Hawkins, both from Birmingham, Alabama. They left in Reeves’s blue Buick. Reeves immediately telephoned the police.

Barry and Deborah Bean were approaching the drug store on Harrison Street and saw the robbers flee the building. They also saw McKenzie, who was a friend, come out of the store and get in his pickup. Bean drove down to Delaware, and then cut back through a parking lot by the Baptist Church onto Harrison Street at the back entrance to Fred’s. They saw an empty blue Buick, later identified as Reeves’s car, parked there at Fred’s. They saw two men running away from the Buick.

There was a white Chevrolet Monte Carlo parked at the service station by the ice machine, backed in, with its front headed east toward the street.

The Beans saw both men crossing Delaware, but lost one of them. They saw the other, who was carrying a sack, stop running as he approached the service station, turn and walk up to the Monte Carlo. They saw him pause “a minute or two,” and then get into the passenger side of the Monte Carlo. As the Monte Carlo drove off, they saw two men in it.

Officers Steven Rushing and Don LeC-our, Jr., of the McComb Police Department were on patrol and notified of the robbery. They went to Sav-On around 2:00 p.m., and learned from East that he had just been robbed. They followed a blue Buick a short distance onto Interstate 55 (1-55) before seeing that it was a family car and obviously not Reeves’s. They turned, and as they were returning were told on the radio that the suspects were in a white Monte Carlo. They turned into the Delaware exit off the Interstate headed east, and as they did, they observed a white Monte Carlo headed west at the Holiday Inn, driving at a normal rate of speed. They only saw the driver in the car.

Both Rushing and LeCour identified the driver of the Monte Carlo as Gangl. They turned around, and saw the Monte Carlo had an Alabama license tag. They switched on the blue lights and the Monte Carlo sped off. C.V. Glynnis, a Pike County deputy sheriff, was parked at the southbound entrance ramp onto 1-55, and shot at the car. The car got off the road, then back onto the southbound entrance to the Interstate, and sped south. The officers began a high-speed chase in excess of 100 miles per hour. As they would try to pass, Gangl would pull the car over to force them off the highway. Gangl crossed the median and drove the Monte Carlo south in the northbound lane of the Interstate.

In addition to Rushing’s car, Glynnis was also pursuing the Monte Carlo. As the cars approached the Highway 24 exit, the Rushing vehicle crossed the Interstate and took the off ramp from the northbound lane. Glynnis drove off from the westbound ramp, doubled under the bridge and saw the Monte Carlo run into a ditch on the north side of the highway (also Presley Avenue). As he passed the car coming to a stop, Glynnis saw two males, one without a shirt on, run into the woods, one of them running to the north and the other to the east.

The woods were sealed off, and Kenneth Williams, the larger robber was subsequently found and arrested.

About an hour and a half later, Gangl was also seen coming out of some bushes and arrested.

Allen Hawkins was not apprehended that day, but some time thereafter arrested in Birmingham. The Monte Carlo was registered in the names of Allen and Kim Hawkins. The license plate attached to it that day was to a Plymouth vehicle registered in the name of Williams.

LeCour testified that as they were following the Monte Carlo in the high-speed chase down 1-55, it was approximately 2:15 p.m. Rushing testified that when they saw the Monte Carlo on Delaware Avenue it was not over 15 minutes after they had been notified of the robbery, or around 2:21 p.m. Glynnis testified it was about ten or fifteen minutes after he received word of the robbery that he saw the Monte Carlo there at the Delaware Avenue ramp to I-55.

The Monte Carlo was searched, and in it were found a large quantity of drugs spread over the floorboard, a pillowcase full of drugs, a .38 caliber pistol and a bag containing money, and a long-sleeved red pullover shirt with a Harley-Davidson emblem on the front. They also found car keys, and road maps.

Perry Ashley, investigator with the McComb police department, was the officer who searched and inventoried the contents of the Monte Carlo. Ashley also found a paper bag in the alleyway west of Fred’s, which contained $978.00 in cash, a black gun, and some car keys, later identified as being keys to Reeves’s blue Buick. East positively identified many of the drugs found in the car and pillowcase as having come out of his store by the markings on the labels.

Gangl was also from Birmingham. As above noted, the two robbers who entered the store were Williams and Hawkins.

LAW

Precisely as he does now, on his first appeal Gangl argued the sufficiency of the evidence, and following our review of the record, we found this argument without merit. Gangl v. State 539 So.2d 132 (Miss. 1989). Essentially the same evidence was introduced at Gangl’s second trial, and therefore under our previous law the sufficiency of the evidence was settled by Gangl I. See Windham v. State, 602 So.2d 798, 799-200 (Miss.1992) (Prather, J., wherein sufficiency of the evidence rejected on first appeal was again raised on second appeal). If there is any difference between the proof adduced at the first trial and that of the second trial, the majority fails to tell us. Therefore, at least according to Windham, 602 So.2d at 799-800, the issue of the sufficiency of the evidence at the second trial was res judicata.

I could, and perhaps should, rest my case with the well-settled principle of law once again pronounced in our recent Windham. Because we held as a matter of law in Gangl I that there was sufficient evidence to make a jury issue of Gangl’s guilt, how come the same evidence did not make a jury issue in Gangl II? Why has the majority changed the meaning of res judica-ta? I am compelled, however, to analyze the State’s proof in this case on its own merits to demonstrate clearly and beyond peradventure the strong circumstantial case of Gangl’s guilt.

Only in the South could you find a departing robber attempt to ease the worry of a distraught victim by telling her that her expropriated car would be only a short distance away. This also showed a preconceived plan not to use the Buick to flee McComb, but only a sufficient distance to get away from the drug store, and then into another vehicle.

Less than five minutes after the robbery, the Beans saw two men running from the abandoned Buick in Fred’s parking lot. They lost sight of one of them as the two crossed Delaware. The one in sight, no doubt to avoid attracting attention, stopped running and proceeded to walk to the service station. He was carrying a sack of some kind. He walked over to the Monte Carlo, stood there for what they described as a minute or two, looking around. Then he got in the passenger side of the Monte Carlo, and it drove off, the Beans seeing two men in it.

The man who got in the passenger side of the Monte Carlo obviously was one of the men who had been in Sav-On. The driver had to be Gangl, because just a bare few minutes after that he was identified by Rushing and LeCour driving the car on Delaware.

Gangl was driving at a moderate rate of speed, no doubt seeking to avoid raising any suspicion. He may have been cruising in search of the other robber. In any event, the robber in the ear, again no doubt to avoid suspicion, was hunkered down out of sight, because Rushing and LeCour did not see anybody but Gangl in the Monte Carlo.

Gangl, as noted, was driving carefully, cautiously and scrupulously obeying the traffic laws of McComb. But, what did he do when Rushing and LeCour did a U-turn, got in behind the Monte Carlo and turned their blue lights on? He followed the example of the familiar bat and took the law enforcement officers on a chase down 1-55 that will remain silhouetted on the skyline of the memories of the of the good citizens of Pike County.

Following arrest of Williams and Gangl and seizure of the Monte Carlo, there were found in the car a red pullover shirt and what could have been the shirt worn by one of the robbers, all kinds of drugs that came out of Sav-On, a pistol and road maps.

Gangl never set foot in Sav-On Drug Store. We all know that, but we know with equal certainty that he was part and parcel of Hawkins’s and Williams’s attempt to complete their crime by getting out of McComb and Pike County.

The only possible question, and it is very little, is whether Gangl was part of a preconceived plan, did he know about the robbery beforehand, or did he first learn about it after it was all over but the flight? In other words, was Gangl’s first knowledge of the robbery when Williams walked over to the Monte Carlo at the service station and got in the passenger side?

Of course, Gangl did not say he was part of a preconceived plan. He did not tell the officers or circuit court anything. Nor did Williams or Hawkins. Unless one of these gentlemen decides to write his memoirs some day, we will wait until Lamb’s Dream Children are born. We will never know. But, this does not mean that a strong circumstantial evidence case was not made for any sensible man or woman sitting on that jury.

The majority tells us that all that was proved was that Gangl was an accessory after the fact. In deference, I must agree with the learned circuit judge who, when defense counsel suggested such a hypothesis in support of a motion for a directed verdict, responded that one would have to believe in “the tooth fairy” to believe that under the facts of this case Gangl did not know of the proposed robbery beforehand. The circuit judge further suggested it would require an extraordinary degree of naivete to believe Gangl first learned of the robbery after its commission.

Why was Gangl there in the driver’s the get-away car if he did not know the plan beforehand?

All three men were from Alabama, and Gangl just happened to be there by coincidence? Just happened by sitting there in the driver’s seat of Hawkins’ Monte Carlo?

Attributes of circumstantial evidence which any person familiar with life’s experiences recognize are first, that there can be a perfectly innocent explanation for an otherwise highly incriminating event or circumstance which, when given, dissipates our incredulity; and second, the unfortunate person caught in such a predicament is generally not only willing, but eager to give the entire facts. Few of us get through life without at one time or another finding ourselves the recipient of arched-eyebrow scrutiny. But when a person caught in a web of incriminating circumstances is unwilling to offer any explanation, then his behavior becomes indeed suspect. This evaluation of our fellow humans is a law of human behavior, human nature, and no law is going to change it. Courts cannot, nor should they, expect juries of sensible men and women to ignore it.

Every reasonable hypothesis in this ease is consistent with Gangl having been a part of the preconceived plan to rob Sav-On Drugs, his part being to wait on Williams and Hawkins at the car while they robbed, and then assist them in their flight by driving the Monte Carlo.

There is no reasonable hypothesis from this entire factual scenario consistent with Gangl’s having known nothing about the robbery until he saw Williams walk onto the filling station lot that afternoon.

It is the settled law in this State that where there is substantial, reasonable and competent circumstantial evidence supporting the jury’s verdict, it will not be disturbed on appeal. Dixon v. State, 188 Miss. 797, 196 So. 637 (1940). Under this standard, the State in this case went far beyond that required by our law.

This Court stated in Johnson v. State, 23 So.2d 499, 500 (Miss.1945):

It was long ago held by this Court in the case of Browning v. State, 33 Miss. 47, citing Cicely v. State, 13 Smedes & M. 202, 211, and the principle has been uniformly adhered to since that time, that the sufficiency of circumstantial evidence is peculiarly for the determination of the jury, “because it is always solemnly to be weighed and acted upon by their understanding and consciences, and is, from its very nature, the subject of inferences and conclusions in their minds,” and that “a verdict, therefore, found on circumstantial evidence, will always be permitted to stand unless it is opposed by a decided preponderance of the evidence, or is based on no evidence whatsoever.”

Also, Burrill v. State, 328 So.2d 334 (Miss.1976).

Mississippi follows the general law. State v. Donckers, 200 Wash. 45, 93 P.2d 355, 357 (1939):

Whether circumstantial evidence tending to connect appellant with the crime excludes, to a moral certainty, every other reasonable hypothesis than that of appellant’s guilty was a question for the jury, and not for the court.

Buenoano v. State, 478 So.2d 387, 390 (Fla.App. 1 Dist.1985):

But the question of whether the evidence fails to exclude all reasonable hypotheses of innocence is for the jury to determine, and where there is substantial, competent evidence to support the jury verdict, the verdict will not be reversed on appeal.

State v. Allen, 335 So.2d 823, 826 (Fla. 1976):

Circumstantial evidence, by its very nature, is not free from alternate interpretations. The state is not obligated to rebut conclusively every possible variation, however, or to explain every possible construction in a way which is consistent only with the allegations against the defendant. Were those requirements placed on the state for these purposes, circumstantial evidence would always be inadequate to establish a preliminary showing of the necessary elements of a crime.

Also, Whaley v. U.S., 141 F.2d 1010 (5th Cir.1944), cert. den. 323 U.S. 742, 65 S.Ct. 46, 89 L.Ed. 595 (1944); Payne v. State, 424 So.2d 722 (AIa.Cr.App.1982); Coleman v. State, 394 So.2d 82 (Ala.Cr.App.1981); Mauldin v. State 376 So.2d 788 (Ala.Cr.App.1979); People v. Muhly, 15 Cal.App. 416, 114 P. 1017 (1911); Creech v. Commonwealth, 270 Ky. 662, 110 S.W.2d 269 (1937).

In Moore v. U.S., 271 F.2d 564, 568 (4th Cir.1959), the Court held:

In a criminal case the accused is protected, at every stage of the trial, with a presumption of innocence and until he is proven guilty beyond a reasonable doubt by proper and competent evidence. No inference of guilt can be drawn from the mere fact that the accused did not testify in his own behalf. These are fundamental principles which require no citation of authority. But other principles have not been overlooked or disregarded in reaching our decision. Circumstantial evidence may support a verdict of guilty, though it does not exclude every reasonable hypothesis consistent with innocence. Holland v. United States, 1954, 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150. If it be sufficient to support an inference of guilt and the defendant fails to offer a reasonable explanation consistent with innocence, such failure may be considered by the trier of fact. Wilson v. United States, 1896, 162 U.S. 613, 16 S.Ct. 895, 40 L.Ed. 1090; Jenkins v. United States, 4 Cir., 1932, 58 F.2d 556. It is not necessary, in appraising the sufficiency of the evidence, that this court be convinced beyond a reasonable doubt of the guilt of the defendant. Bell v. United States, 4 Cir., 1950, 185 F.2d 302. The question is whether the evidence, construed most favorably for the prosecution, is such that a jury (or trial judge) might find the defendant guilty beyond a reasonable doubt, Bell v. United States, supra; United States v. Brown, 2 Cir.1956, 236 F.2d 403; Stoppelli v. United States, 9 Cir., 1950, 183 F.2d 391.

The evidence supported the conclusion that Hawkins and Williams did not plan to flee McComb in Reeves’s Buick and that Gangl was the driver of Hawkins’s Monte Carlo, backed into the service station, awaiting one or both of their arrivals, all as part of their plan to rob Sav-On. The jury was further warranted in finding that, pursuant to the plan, Williams did go to the service station, walking so as not to arouse suspicion, and got into the car with part of the loot, and Gangl drove off.

The evidence in this case under settled principles of law supports the verdict of the jury, and I would sustain the State’s petition for rehearing and affirm.

I respectfully dissent.

ROY NOBLE LEE, C.J., and DAN M. LEE, P.J., join this opinion. 
      
      . On August 3, 1985, this was a Charter service station, later changed to Exxon.
     
      
      . This man had also been in the store in the middle of the morning, looked around a few moments, and walked out.
     
      
      . My review of the record convinces me the State's proof was every bit as strong, if not stronger, in the second trial than the first.
     
      
      . Yes, this is precisely what we said, twice. Windham, 602 So.2d at 799-800.
     