on state’s motion for rehearing.
DAVIDSON, Judge.The correctness of our conclusion that the admission of the testimony showing the sale, by Williams, to Nichols, of three pints of whiskey, as reflected by Bill of Exception No. 1, was error, is challenged by the State.
It is insisted that such testimony was admissible, not only as supporting the State’s theory that the whiskey found in appellant’s possession was possessed by him for the purpose of sale, but also to rebut the affirmative defensive testimony of the appellant that the whiskey was possessed by him for purposes other than that of sale. If the testimony complained of had tended to establish either of said theories, its admissibility could not be questioned.
We agree with the State’s construction of the law, but fail to find sufficient evidence in this case which shows or tends to show appellant’s connection with the sale of the whiskey, by Williams, to Nichols. In this connection, we note that Nichols did not say that Williams got the whiskey out of appellant’s room, or that he went to appellant’s room. He puts Williams no farther than at the bottom of the stairway, which led to the second floor, where appellant resided. There is no testimony that appellant alone occupied the rooms over the filling station, nor that the stairway led only to rooms or quarters occupied solely by the appellant. The only connection reflected *66by this record existing between Williams and appellant was that Williams was the owner of the building and appellant was his tenant.
Under such a state of facts, to say that appellant is shown to have been connected with Williams in the sale of the whiskey to Nichols would be to indulge a presumption not warranted by the record before us.
Believing that the case was correctly disposed of originally, the State’s motion for rehearing is overruled.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.