While, as stated in the original opinion, there were suspicious circumstances, still to the mind of the writer they are clearly insufficient to support the verdict. They may be summarized as follows: The appellant rented a house several months before the date of the search. At the time he rented it there was no still in it. There was no testimony showing that he ever entered the house again after the day he rented it. He was not present at the time of the raid. However, some stress is laid by the State upon the fact that the appellant was told by the probation officer that the boy did what the appellant had told him to do. The officer did not state the words which were used. This could hardly be regarded as a charge requiring an answer. The house was in a thickly settled neighborhood. According to the officers, at the time of the search, it was obvious from *Page 320 the odor coming from the house that whisky was being made therein. Just when this became manifest, whether recent or of long standing, is not disclosed. In argument, it is urged by the State that the want of testimony connecting the appellant with the offense is supplied by the absence of certain evidence, among others, that the boy was not returned. Touching any request to return him or any process for his appearance the record is silent. While the failure to introduce available testimony may be considered against the accused, it cannot support a conviction in the absence of affirmative testimony, such as will prima facie show guilt. Moreover, the failure of the accused to testify cannot avail the State in making out a case of guilt. Such is the statute, Art. 710, C. C. P., 1925. The only time that the direct evidence shows the appellant to have been in the house was about two and one-half months before the raid, and at that time it affirmatively appears from the State's testimony that there was no whisky or apparatus in the house.
We are constrained to overrule the motion for rehearing and it is so ordered.
Overruled.