The offense is murder; the punishment, 25 years.
According to this record, deceased was last seen alive at a beer drinking establishment at approximately 1:30 A.M. Sunday morning. Later, at 7:30 A.M., appellant’s eight-year old daughter, acting upon his in*19structions, attempted to arouse his wife from her bed in the front bedroom and, being unable to do so, was told by appellant to go for help. A small wound was visible in her upper cheek bone. The autopsy revealed that she had died at approximately 3:00 A.M. as the result of a .22 caliber bullet wound and her blood contained sufficient alcohol to indicate that she had been intoxicated.
Appellant was a total cripple, having lost both his legs, and could not descend the steps to his home, which was six or seven feet above the ground, without aid and could not have left the house in order to dispose of the murder weapon. A search of the house by the police within minutes after the outcry failed to reveal any weapon capable of inflicting the injury to deceased.
It is important to note that Dr. Jachi-mczyk, medical examiner for Harris County, who arrived upon the scene and later performed the autopsy, did not testify that death was instantaneous or even that it was impossible for deceased to have walked after she sustained the injury.
Appellant, testifying in his own behalf, denied that he had shot his wife and stated that she had put him to bed before she left for the evening and that he first knew of her condition when he sent the eight-year old girl to awaken her the next morning.
At most, the State was able to call witnesses who testified that deceased had bought a .22 caliber pistol prior to his wife’s death and others who testified that he had on one occasion, when mad, said he was going to “get even” with deceased, “blow her brains out.” Appellant denied both charges. Appellant and deceased were shown to have lived harmoniously together, and their eight-year old daughter was examined closely, and she denied any knowledge of a weapon. No one else was shown to have been in the house until the alarm was made.
In order to support a conviction upon circumstantial evidence, every other reasonable hypothesis except the guilt of accused must be excluded, and the evidence must go further than to raise a probability or suspicion.
The State did not exclude the following reasonable hypotheses:
1. That deceased was shot through a window by someone from outside.
2. That deceased was shot by someone else who entered the unlocked door of the house.
3. That deceased was not shot on the way home from the bar. In support of this hypothesis is the evidence that no one in the neighborhood was shown to have heard a shot.
In support of all of the above is the testimony of the State’s witnesses that appellant expressed disbelief when informed that his wife was dead.
In Freels v. State, 151 Tex.Cr.R. 589, 210 S.W.2d 582, appellant, the injured party and their 14-year old daughter were at home alone in a rural area when the injured party was shot. Ill feeling was shown to exist between appellant and her husband, the injured party, and a rifle from which a bullet had been fired was found after the shooting. This Court said, “That Gerhard Freels, the husband of defendant, was shot with a .22 caliber gun at the time and place in question is definitely shown, but who fired the shot which inflicted the wound on his person is, in our opinion, not shown to the exclusion of every other reasonable hypothesis except the guilt of the defendant.” The facts in Freels were far more compelling than in the case at bar, and yet this Court reversed the conviction because of their insufficiency.
A careful scrutiny of the following cases will reveal that the conviction in the case at bar should not stand: Pogue v. State, 12 Tex.App. 283; Milligan v. State, 97 Tex.Cr.R. 544, 263 S.W. 296; Owens v. State, 134 Tex.Cr.R. 384, 115 S.W.2d 920; Baugh v. State, 134 Tex.Cr.R. *20215, 115 S.W.2d 411; Goode v. State, 139 Tex.Cr.R. 528, 141 S.W.2d 358; Kitchens v. State, 145 Tex.Cr.R. 272, 167 S.W.2d 762; O’Keefe v. State, 145 Tex.Cr.R. 349, 167 S.W.2d 1035; Thomas v. State, 150 Tex.Cr.R. 540, 203 S.W.2d 536; and Massey v. State, 154 Tex.Cr.R. 263, 226 S.W.2d 856.
The judgment is reversed and the cause remanded.