Opinion by

The defendant and Charles H. Porter and Harry McAteer were jointly indicted and convicted of the crime of burglary. After sentence, Porter and McCloskey appealed to this court. This opinion is in the appeal of the latter, but it is intended to apply also to Porter’s appeal, as both cases and appeals rest on the same ground. McAteer did not appeal and it seems to be conceded that his conviction and sentence were warranted by the evidence.

At the close of the case of the commonwealth counsel for Porter and McCloskey moved the court to direct a verdict in their favor for the reason that the commonwealth had failed to produce sufficient evidence to warrant the conviction of either of them. This motion was refused and the defendants then offered the evidence of several witnesses and also took the stand in their own behalf. An examination of the testimony convinces us that the defendants did not strengthen the commonwealth’s case, and, therefore, the question remained, was there sufficient evidence to carry the case to the jury as to Porter and McCloskey? No formal points were presented to the court on the part of the defendants and all the questions raised by the assignments of error are under a general exception to the charge of the court taken in behalf of the defendants.

The first assignment is only open to criticism on the ground of the insufficiency of the evidence as to Porter and McCloskey. We feel compelled to hold that the evidence was insufficient as to them and, therefore, the first assignment is sustained.

The fourth assignment is: “The Court erred in its charge to the jury as follows: 'But there are circumstances connected with the case that it is your duty to consider from the testimony and ascertain whether or not Porter and McCloskey were connected in any way with the offense charged.’ ”

We have examined the evidence with care and cannot see that it warranted the jury in finding Porter and McCloskey guilty of the burglary charge against them. If there had been such evidence, then it cannot be denied that there were some slight circumstances in evidence that would, or might have been corroborating. But in the whole record there is a want of *624evidence to support the verdict of guilty of burglary as to Porter and McCloskey. Therefore, it was error to charge as quoted in the fourth assignment and it is sustained.

At most, the jury could only guess that Porter and Mc-Closkey were guilty, and while they may have guessed rightly the verdict and judgment cannot stand for the reason that the commonwealth can only ask a conviction on sufficient evidence to establish the guilt of the defendants beyond a reasonable doubt.

The first and fourth assignments of error are sustained, and the judgment is reversed as to George McCloskey and he is discharged without day.