The rule applies only where the evidence is entirely circumstantial. State v. Fox, 123 Vt. 82, 85, 181 A.2d 74; State v. Tatko, 119 Vt., supra, at 465, 128 A.2d 663; State v. Marston, 82 Vt. 250, 251, 72 A. 1075. The law affords him a presumption of innocence which attends him until the jury returns its verdict.
If we can assume the instruction the respondent had in mind was that the jury should be told it could not base an inference upon an inference to establish respondent's guilt, we discern no harm done the respondent by the court's failure to so charge, as the jury had before it an abundance of evidence that the respondent was driving at an excessive rate of speed at the time in question, and failed to exercise proper control of his vehicle. See Huestis v. Estate of Lapham, 113 Vt. 191, 198, 32 A.2d 115; Capello's Admr. v. Aero Mayflower TransitCo. 116 Vt. 64, 67, 68 A.2d 913; State v. Fox, 123 Vt. 82, 86, 181 A.2d 74 for a discussion of inferences. We may observe in passing, that respondent has not suffered the loss of any rights by failing to properly save his exception, as the court, in charging the jury "when all of the evidence of a respondent's guilt is circumstantial, it is incumbent upon the State to produce evidence of circumstances which exclude every reasonable theory consistent with respondent's innocence," gave the respondent the advantage of a charge that the evidence did not warrant. This instruction, if ever essential in this jurisdiction, is required only in cases where the evidence is wholly and entirely circumstantial.
In Curry v. State (1964), 235 Md. 378 ( 201 A.2d 792), certiorari denied 379 U.S. 1004 ( 85 S Ct 729, 13 L Ed 2d 705), the defendant was convicted of unauthorized use of an automobile on testimony similar to that presented in the case at bar, in that it was only established that he had been driving a car fitting the description of the stolen car under circumstances which might lead one to conclude he had driven the stolen car; in affirming the conviction the court observed that possession of recently stolen goods allows an inference that the possessor is the thief. Similarly, see State v. Fox (1962), 123 Vt. 82 ( 181 A.2d 74). The probative value of the people's evidence, albeit circumstantial, was for the jury to determine.
Consequently, we will restrict our consideration of the case to this one particular issue. When testing the sufficiency of the evidence to support a verdict of guilty, we, as an appellate court, are required to gauge that evidence in its aspect most favorable to the State. State v. Fox, 123 Vt. 82, 83, 181 A.2d 74 (1962). However, by the same token, this Court has consistently subjected verdicts founded upon circumstantial proof to a strict standard of scrutiny.
This challenge requires us to test the evidence in its aspect most favorable to the State, free from the force of modifying evidence. See State v. Fox, 123 Vt. 82, 181 A.2d 74 (1962). So viewed, the evidence discloses the following factual situation.
Our analysis bears out his contention of insufficiency. This Court has long adhered to the view that where evidence of guilt is entirely circumstantial the circumstances proved must exclude every reasonable hypothesis except the one that the defendant is guilty. State v. Fox, 123 Vt. 82, 181 A.2d 74 (1962). And this conclusion cannot be reached by basing one inference from established facts upon another inference.
'" The respondent claims the charge violates the rule set forth in State v. Fox, 123 Vt. 82, 181 A.2d 74 and State v. Sanford, 118 Vt. 242, 108 A.2d 516. The rule therein stated is that where the evidence is entirely circumstantial, it must be sufficient to exclude every reasonable hypothesis consistent with respondent's innocence and to sustain a verdict of guilty.
We are required to test the evidence in its aspect most favorable to the state, free from the force of modifying evidence. State v. Fox, 123 Vt. 82, 83, 181 A.2d 74; State v. Tatko, 119 Vt. 459, 460, 128 A.2d 633; State v. Hart, 119 Vt. 54, 55, 117 A.2d 387; State v. Perras, 117 Vt. 163, 164-165, 86 A.2d 544. The test laid down in passing upon the respondent's motions for a directed verdict is whether the state introduced evidence fairly and reasonably tending to show respondent's guilt, or in other words, whether the jury on the evidence was justified in finding the respondent guilty beyond a reasonable doubt.