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PRESENT:-Duff CJ. and Cannon, Crocket, Davis, Kerwin and Hudson JJ.
(1) [19381 O.R. 200.
THE CHIEF JUSTICE.-This is an appeal by the Crown against a judgment of the Court of Appeal for Ontario (1) by which that court quashed a conviction of the respondco'M. ent, John A. Comba, after a verdict of guilty upon an in- W. dictment for murder, Latchford C.J.A. dissenting.
It was stated before us by counsel for the Crown that the Attorney-General, after reviewing the proceedings at the trial, had, because of certain rulings of the trial judge, decided that the verdict of the jury could not be allowed to stand and that a new trial would be necessary. The difference of opinion between the majority of the court and Latchford C.J.A. concerned solely the question whether there should be a further trial or, as the four judges who constituted the majority of the court unanimously held, the conviction should be quashed and the prisoner discharged on the ground that the proof adduced did not establish a case sufficiently free from doubt to justify a finding that the crime charged was committed by him. Having examined the evidence minutely and weighed with care the argument addressed to us on behalf of the Crown, we think our judgment should be pronounced without further delay.
It is admitted by the Crown, as the fact is, that the verdict rests solely upon a basis of circumstantial evidence. In such cases, by the long settled rule of the common law, which is the rule of law in Canada, the jury, before finding a prisoner guilty upon such evidence, must be satisfied not only that the circumstances are consistent with a conclusion that the criminal act was committed by the accused, but also that the facts are such as to be inconsistent with any other rational conclusion than that the accused is the guilty person.
We have no doubt that the facts adduced have not the degree of probative force that is required in order to satisfy the test formulated by this rule; which is one that courts of justice in Canada are governed by and are bound to apply.
We agree with the majority of the Court of Appeal, whose reasons for their judgment we find convincing and conclusive, that the learned trial judge ought, on the application made by counsel for the prisoner at the close of