(after stating the facts.) The main contention on this appeal is that the evidence is not sufficient to sustain the verdict. It is the theory of the prosecution that the accused men stole Oliver’s meat, and used the two horses of Wiyzer to bring it down to Van Burén, or near there! The meat was undoubtedly stolen, and we believe that the thieves used the horses of Wiyzer to carry it away, but who those thieves were the evidence does not show. Leaving out the fact that France and the two other suspected men endeavored to evade arrest, there is nothing in the evidence to connect them with the crime charged. The evidence shows that, late in the afternoon before the meat was stolen, they were seen going along a public highway leading towards the place from which the meat was stolen. But they explained this by saying that they were going to Cedar creek to spend the night fishing. The testimony was not contradicted, but was corroborated by several witnesses who testified for the state. These witnesses, though introduced by the state, were relations and friends of defendant, and the jury may not have believed them. But if we disregard the testimony favorable to defendants, we have only the fact that they were seen on a public road a mile and a half from Oliver’s on the afternoon or evening before the meat was stolen at night.
The fact that one passes in the afternoon along a public highway by a house where a larceny is committed at night is, *532of itself, no evidence that he committed the larceny. But it is said that the circumstance of the horses being found near Yan Burén with grease on their shoulders tends to show that the meat was carried to that neighborhood, and that the accused men lived near Yan Burén, and by their own confession had been in a mile and a half of Oliver’s, and returned to Yan Burén on the night the meat was stolen. Assuming that the grease upon the horses came from the meat, the fact that these horses were found near Yan Burén, and near the home of their owner, shortly after the theft may be some evidence, though not very strong, that the meat was carried in that direction; for it may have been carried to another neighborhood, and the horses, upon being released, may have, of their own volition, returned to their former home. But if the meat was carried towards Yan Burén, this is hardly sufficient to raise a suspicion against the defendants more than against many others, and is really no evidence that they were connected with the crime. Yan Burén is a populous town, and numbers of people lived in the neighborhood where the meat was stolen. People were continually going back and forth between the two neighborhoods, but this does not show that any particular one of them took the meat. The circumstances tend to show that the meat was carried down the road after midnight of the night it was stolen, but the defendants and several witnesses for the state say that, although defendants were on Cedar creek about a mile and a half from Oliver’s place the day before the larceny, yet they returned home early in the night, about eight or nine o’clock. There is nothing to contradict this testimony, and nothing to connect the defendants with the crime except the fact that they afterwards endeavored to evade arrest. This circumstance, taken iu connection with the fact that these parties were in the neighborhood of the crime shortly before the larceny was committed, does raise a suspicion that they were connected with the crime. But is this sufficient to sustain the verdict? “When a suspected person attempts to escape or evade a threatened prosecution,” says Wharton, “it may be argued that he does so from a consciousness of guilt; and though this inference is by no means strong enough by itself to warrant a *533conviction, yet it may become one of a' series of circumstances from which guilt may be inferred.” Wharton, Crim. Ev. § 750. The court of appeals of New York, speaking of this question, said: “The evidence that the defendant made an effort to keep out of the way of the sheriff was very slight, if any, evidence of guilt. There are so many reasons for such conduct consistent with innocence that it scarcely comes up to the standard of evidence tending to establish guilt, but this and similar evidence has been allowed upon the theory that the jury will give it such weight as it deserves depending upon surrounding circumstances.” Ryan v. People, 79 N. Y. 601. This language was quoted with approval by the supreme court of the United States in a recent case where the court reversed the judgment of the district judge, saying of the charge to the jury that “it lays too much stress upon the fact of flight, and allows the jury to infer that this fact alone is sufficient to create a presumption of guilt.” Alberty v. United States, 162 U. S. 511.
There may be cases where the flight of a person to avoid arrest for a crime tends very strongly to show guilt or connection with the crime, and the weight to be given such circumstance is for the jury to determine. But their decision is subject to review by the court on a motion for new trial. Now, the evidence in this case shows, we think, that this defendant and those charged with him did not intend permanently to avoid arrest. They stated that they endeavored to avoid arrest at the time, for the reason that they could not give a bond, and did not wish to lie in jail until they could have a trial, but intended to surrender soon. The fact that they continued to remain in the neighborhood of their homes until arrested, although they could easily have left the state, seems to support this statement. Although this endeavor to avoid arrest was a circumstance against defendant calculated to arouse a suspicion that he was guilty, yet, taken in connection with the explanation given for it, we think it’hardly sufficient to justify the conviction, when standing alone without other circumstance to connect defendant with the crime.
The defendant may be guilty. A jury of his county have found that he is, and the circumstances are suspicious. But a *534consideration of the evidence has convinced a majority of the judges that it is too slight to support the verdict, and that it would be safer to submit the facts to another jury. We are therefore of the opinion that a new trial should have been granted. Judgment reversed, and cause remanded for a new trial.