The unlawful possession of intoxicating liquor is the offense; punishment fixed at confinement in the penitentiary for one year.
Appellant resided at a village composed of six or seven dwelling places. Besides his dwelling, he had a store, barn and gin. In the store he sold cold drinks. The premises were searched. There was a failure to find any intoxicating liquor of any character in any of his buildings, but in the barn there were found some empty bottles, the character of which might have been for beer or might have been for "near beer." In the weeds some distance from the appellant's barn there were found several cases of what the officers called beer and "home brew." These cases of beer were in what was described as a "big pasture" and were about the same distance from places occupied by others as from the appellant.
There was one witness who testified that sometime ago he had bought whisky in the house of the appellant but that he did not buy it from the appellant. The date of the transaction is not given at all. The witness said, however, that the appellant was in the store at the time he bought whisky from another man. The witness did not state that the appellant was cognizant of the transaction; that the whisky was not in the store but that the man went out to some place and got it.
The evidence adduced by the appellant was that the place where the alleged contraband liquid was found was not on his premises or on the premises under his control. This comes from others than the appellant, and was not controverted by any direct testimony.
The chief complaint is the refusal of the court to instruct the jury upon the law of circumstantial evidence. This fault in the charge was properly raised by exceptions duly preserved. state's counsel concedes that the conviction rests upon circumstantial evidence alone, and in this view we concur.
The judgment is reversed and the cause remanded.
Reversed and remanded.
ON MOTION FOR REHEARING BY STATE.