On the 20th day of September, 1930, the dwellinghouse of the appellant was searched. A quantity of whisky was found, estimated at seventeen gallons. A part of it was in a demijohn, and part of it was in jars and bottles. There were about two dozen empty pint flasks and a number of corks; about fifteen pounds of paper bags, two funnels, two rubber syphons and some canned malt. The officer said that he passed through a hall, on the left of which was a bathroom in which the demijohn was setting, and a syphon in it. The cases of whisky bottles were there. In the barn were several empty cases bearing evidence of having contained whisky. The appellant was not at home at the time, but his wife was there.
Lawrence Stewart testified for the appellant in substance as follows: He was working for the appellant and running a service station for him. He was boarding at the home of the appellant. Junius Covington, another boy, roomed there. The rooms of Covington and the witness were separate. Covington had lived in the neighborhood for about a month. He was driving a car for the appellant. Early in the morning before the raid was made, Covington was at the Wooldridge home and asked the witness if he wanted a drink of liquor. The witness, who was in his room, declined the liquor. Covington, opened the closet, exhibited a quantity of liquor to the witness, including a large jug and a number of jars. Covington's room was across the hall from the bathroom or closet in which the liquor was situated. The room was used by Covington, and he said that the liquor belonged to him. Wooldridge was not there at the time. The witness did not know where the whisky came from. It was not there on the day before. The witness used the bathroom but had never seen the whisky there until the time mentioned, when it was exhibited to him by Covington on the morning before the raid. The witness slept at the Wooldridge home the night before he *Page 259 saw the whisky. Wooldridge did not stay there that night but stayed at the station. He had been at the filling station, and stayed there most of the time at night. He was not at home at the time that the witness was shown the whisky, and did not tell Wooldridge that he had seen the whisky.
The appellant's wife testified that her family, besides herself, consisted of two boys and two girls. They were keeping boarders. One of them was Lawrence Stewart, and the other was Junius Covington. Stewart was the boy who testified upon the trial. They occupied separate rooms. Covington's room adjoined the bathroom across the hall. He had access to the bathroom. He had no closet in his room. There was a closet in the bathroom which was used by Covington, but not used by the family of the appellant. The witness did not know the whisky was there until she was told of it by Covington. She was informed by Covington about 8:30 o'clock on the night previous to the raid. Covington said that he had stored some whisky in the closet and was told by the witness to get it out. He promised to do so as soon as possible. The witness did not know that Covington had brought liquor to the house, but learned of it after it had been brought there by Covington. The appellant was not at home that night. He had a bed at the filling station and frequently stayed there at night. She had not informed her husband that the whisky was in the house. So far as she was aware, he had no knowledge of the presence of the whisky in the house. The foregoing is a synopsis of all the testimony.
The conviction rests upon circumstantial evidence. It was the state's burden to prove that appellant possessed the liquor; also that he possessed it for sale.
The evidence introduced by the state discloses that a quantity of whisky, some empty flasks, funnels and a syphon were found in the bathroom of appellant's dwelling. The appellant was not present at the time of the discovery. In the barn there were some empty jugs which bore the odor of whisky. It affirmatively appears that the appellant was not present at the time the criminative facts were discovered. There is an absence of evidence on the part of the state touching the whereabouts of the appellant. It does not appear from any fact proved by the state that the appellant was in the county or in the state. It was merely proved that the whisky and equipment found were in the house in which he lived. Dealing with the facts proved by the state alone, and having in mind the principles of circumstantial evidence, it is not thought that the measure of proof was met; that is, proof beyond a reasonable doubt that the appellant possessed the liquor, excluding every reasonable hypothesis save that he possessed it, and demonstrating his possession of it to a moral certainty. The evidence introduced upon behalf of the appellant is exculpatory to the effect that other persons lived in the house; that the whisky was placed *Page 260 there by another person and belonged to another person; that the appellant had not been present since it was placed there. Of course, the jury was warranted in disbelieving the testimony introduced upon behalf of the appellant, but if note of the state's evidence alone is taken, it is regarded as inconclusive, when tested by the law of circumstantial evidence, to justify the verdict of conviction.
For the reasons stated, the motion for rehearing is granted; the order of affirmance is set aside, the judgment of the trial court is reversed, and the cause remanded.
Reversed and remanded.