State v. Leisy ( 1980 )

Boslaugh, J.,

dissenting in part.

I concur in the judgment of the court but do not join in that part of the opinion that suggests the circumstantial evidence rule applies only to “material facts” when used in the sense of ultimate facts. It should be self-evident that the rule is applicable to any fact or circumstance rel. 1 upon to sustain a finding of guilty.

The rule that any fact or circumstance reasonably susceptible of two interpretations must be resolved most favorably to the defendant is a correct statement of law and has reference to the inferences to be drawn from a fact or circumstance proved. If a proven fact goes no further than to give equal support to two inconsistent inferences, then an inference favorable to the party with the burden of proof can not be drawn from that fact or circumstance by the trier of fact.