Conviction is for the unlawful manufacture of intoxicating liquor; punishment fixed at confinement in the penitentiary for a period of two years.
From the State's evidence, it appears that under a search warrant the premises of the appellant were examined and there was found a can, some pipe, some jugs, two or three little barrels of mash, a trough, some bottles and different other things. "There was something in the jug." These were exhibited to the jury. The mash was made of water, syrup and meal.
It was shown that sometime prior to the search, appellant brought a can which the witness described as a "slop-can" and had a little piece soldered on the top of it. This can was identified as one of the articles found under the search warrant. At the time the can was repaired or the piece soldered on it, the witness asked the appellant if he intended to make whisky. To this he made no reply.
One witness testified that he tasted some of the articles in the jugs and that in his opinion, it was capable of producing intoxication. He did not swallow any of it but took a little inside his lips and then spit it out. It had the taste of whisky.
We regard the evidence as inadequate to support the conviction. It may be that the articles which were found in the possession of the appellant were such as might have been assembled into a still and *Page 228 used for the purpose of manufacturing intoxicating liquors. There was no testimony, however, to this effect. There is no suggestion in the record that they were assembled in a manner that would fit them for the manufacture of liquor. Each of the articles mentioned in the testimony might have been used for an innocent purpose. There was a can described by the tinner as a "slop-can." It was brought to the tin-shop and a little piece was soldered on top of it. There was no further description of this can. There was a pipe and trough. Neither was further described. There were three little barrels of mash. Whether the contents of the jugs were made of this mash or might have been made of it is not revealed. The quantity of the article found in the jugs is not given. It is not even stated whether it was fluid or not.
The State relies on circumstantial evidence alone. If the articles found were capable of being assembled into a still or were assembled into a still; if there were any means of boiling, heating or condensing; if the so-called mash was capable of making intoxicating liquor; if the articles in the jugs were spiritous liquors such as might have been made of the mash, the evidence to establish these facts was at the command of the State. Inferences from the absence of evidence which is available to the State are not to be drawn against the accused in a criminal case. Walker v. State, 83 Tex.Crim. Rep.; Taylor v. State, 87 Tex.Crim. Rep.. Not having introduced evidence that was manifestly available to show that the articles which were susceptible of an innocent use, were in fact so assembled and connected as to overcome the presumption of innocence and the evidence being otherwise subject to the weaknesses pointed out, we are constrained to hold that the trial court was in error in refusing to grant a new trial. On similar facts, see Williams v. State, 88 Tex.Crim. Rep., 227 S.W. Rep. 316; Hardaway v. State, 90 Tex.Crim. Rep., 236 S.W. Rep., 467.
The judgment is reversed and the cause remanded.
Reversed and remanded.
ON REHEARING. January 10, 1923.