( State v. Child, 40 Kan. 482, 485, 20 P. 275.) Where the circumstances are as consistent with the absence as well as the presence of crime, the corpus delicti has not been proved since the evidence is susceptible to a construction which will prove innocence as well as guilt. ( State v. Kindle et al., 71 Mont. 58, 227 P. 65, 67; People v. Ahrling, 279 Ill. 70, 116 N.E. 764; State v. Nolan, 92 Iowa 491, 61 N.W. 181; State v. Flanagan, 26 W. Va. 116; Martin v. State, 102 Ga. App. 216, 115 S.E.2d 859; Tate v. People, 125 Colo. 527, 247 P.2d 665; State of Maine v. Peterson, 145 Me. 279, 75 A.2d 368; Penton v. State, 194 Ark. 503, 109 S.W.2d 131; Spain v. State, 37 Ala. App. 311, 68 So.2d 53, cert. den. 259 Ala. 606, 68 So.2d 58; State v. Brown, 236 La. 562, 108 So.2d 233; Hendrickson v. Commonwealth, 314 Ky. 464, 235 S.W.2d 981; Alexander v. Commonwealth [Ky.], 277 S.W.2d 17.) See, also, 23 C.J.S., Criminal Law, § 916 (5), p. 636. Turning to the facts of this case, there can be no question but that the deceased met his death sometime between 10:30 p.m., on March 10, 1966, and approximately 9:00 a.m. on March 12, 1966.

The testimony of Asbury Turner, corroborated in part by the testimony of other witnesses, shows that there was trouble in the restaurant, that Shirley received a fatal stab wound inflicted there by appellant, and that she was struck with a downward blow from an uplifted hand. Despite appellant's argument that many other witnesses were present and none of them testified to seeing the knife, the evidence was sufficient to sustain the verdict. Bartley v. Commonwealth, 300 Ky. 152, 188 S.W.2d 102; Bolin v. Commonwealth, 303 Ky. 75, 196 S.W.2d 870; Hendrickson v. Commonwealth, 314 Ky. 464, 235 S.W.2d 981. It is the duty of the jury to pass on the credibility of witnesses and in doing so the jury may believe one witness rather than many witnesses. Jones v. Commonwealth, 307 Ky. 286, 210 S.W.2d 956. From a reading of the record here, one is convinced that the jury was justified in reaching its verdict.

Since we have concluded that there was no evidence of probative value tending to show that an act of Pennington caused Gabbard's death or that he aided or abetted in the commission of the homicide, the trial court erred in overruling the motion for a directed verdict of acquittal. See, Warnell v. Commonwealth, Ky., 246 S.W.2d 144; Hendrickson v. Commonwealth, 314 Ky. 464, 235 S.W.2d 981; Drake v. Commonwealth, 264 Ky. 261, 94 S.W.2d 684; Commonwealth v. Cozine, 9 S.W. 289, 10 Ky.Law Rep. 412. In view of the reversal of the judgment, we will not discuss the other questions raised herein.

DUNCAN, Justice. This appeal is from a conviction of willful murder in the alleged killing of Ethel Sevier. Although this is the first and only appeal of this case, a companion case involving a similar charge in the killing of Elmer Sevier was reversed by this Court in Hendrickson v. Commonwealth, 314 Ky. 464, 235 S.W.2d 981. We are met at the outset with the assertion that we are controlled in the present appeal by our prior opinion inasmuch as the evidence was substantially the same in each case. Although we perceive a substantial difference, which we shall discuss as the opinion proceeds, we shall first consider the extent to which we may be bound by the former opinion in our consideration of the present appeal.

Therefore, the indictment was defective with respect to charging the defendant, Harrod, with being an habitual criminal and did not authorize the instructions under which he was given a life sentence. Allen v. Commonwealth, 272 Ky. 533, 114 S.W.2d 757; Hendrickson v. Commonwealth, 314 Ky. 464, 235 S.W.2d 981. It must be conceded that these irregularities would have entitled the defendant to a reversal of the judgment of conviction which was affirmed as stated, but they were only irregularities or errors which at most rendered the judgment erroneous and not void. These errors were available on the appeal of the petitioner from the judgment of conviction and were not pointed out or relied upon. Under well settled authority we must deem them as having been waived. In any event, the errors cannot be reviewed in a habeas corpus proceeding.