ON MOTION FOR REHEARING.
MORRISON, Judge.On original submission, it was urged by appellant that we reverse this conviction on several questions of law. We remain convinced that we properly disposed of the questions there raised.
Our attention has now been directed to certain discrepancies in the evidence which were not apparent at a time when our thoughts were centered on the contentions raised in appellant’s brief, all of which related to procedure.
T. A. Rowland, a Texas Highway Patrolman, testified that, acting under a search warrant, he searched a certain premises in Hockley County (shown to be a dry area) and found some beer and whiskey, the quantity of each being in excess of the amounts which give rise to the statutory presumptions that it was possessed for the purpose of sale. No one was found at the premises searched. Rowland described such premises as follows:
“The place which we searched is 5% miles south and a half mile east of the little community of Óbydyke. It is in Hockley County, Texas and the road leading out to it is asphalt pavement. . . .
“The house is on the west side of the road and is about 50 yards or so from the road. It is an old farm house, a wooden frame house, with a run down fence about it. The back porch doesn’t have a door to it and is screened. Out near the northwest *193of the house there is an old wind mill. There was an old pickup northwest of the house a short piece. . . .
“South of the house was another old car, some 100 feet or so south of the house and around 40 or 50 feet south of the house was a little shack, out building of sheet iron. There were several trees around the yard. ...”
For the purpose of proving that the beer and whiskey found was possessed by appellant and that he occupied and was in charge of the premises where it was found, the state offered M. M. Hood, an inspector for the Texas Liquor Control Board. Hood was not present at the search. He testified that he had a conversation with appellant at a certain place. Appellant said, according to Hood, that such place was his home and that it was his second crop year there, but the serious question is whether this was the place that was searched.
Hood described said premises so claimed by appellant to be his home as follows:
“This was about 6 miles from Obydyke. It was along a black top road, going south. The house faces the highway, on a farm to market road going south. It sets back off the road. . . . Yes I was with Mr. Thompson today when I drove by that place I talked to the defendant at. . . . This place where I talked with Mr. Loke was six miles southeast of Obydyke. That is, about bi mile east and the rest of the way south.”
According to the testimony offered by the state, there were several houses in the vicinity of the house searched. The witness S. J. Johnson described one of such houses as follows:
“The closest house to the one Mr. Loke lives in is about 4/10 of a mile and is north. That house sets probably 50 yards off the black top road.”
Mr. Johnson did not know what house was searched. He described his own home as being about one-half mile from appellant’s and described its location as follows:
“I live south from Mr. Loke. I always call the distance I live from Obydyke six miles, that is just about it.”
Johnson testified that appellant’s house was about 150 yards off the road. Rowland said the house searched was about 50 yards from the road.
*194Constable Thompson described a house other than that searched as being “probably y% mile north of it. . . located about 200 yards back on the west side of the . . . same black top road, facing east.”
Hood did not describe the appearance of the house claimed by appellant, nor its surroundings, and did not say how far the house was from the road. He did not testify on which side of the road it was located. His description of the premises claimed by appellant may well be applied to any one of the several other houses referred to in the testimony.
It is true that Constable Thompson testified that he “went by” the searched premises in company with “Mr. Hood,” and Hood testified that he was with “Mr. Thompson” when he drove by the place where he talked to appellant.
In traveling the paved road a distance of some six miles south from Obydyke, it appears that one would pass all of the houses mentioned in the testimony.
We are unable to say that the state proved beyond a reasonable doubt that appellant claimed the searched premises as his home. We need not decide whether such proof would be sufficient to show that he occupied and controlled it so as to charge him with possession in law of the beer and whiskey found therein.
It follows that the evidence is insufficient to sustain the conviction.
The motion for rehearing is granted; the judgment of affirmance is set aside; and the judgment of the trial court is reversed and the cause remanded.