dissenting. “The established fundamental rules applicable to circumstantial evidence are.the same in civil as in criminal trials. In both cases it is required that the circumstances relied upon be not only consistent with *872the conclusion sought to be established, but also inconsistent with every other reasonable hypothesis.” Georgia Ry. &c. Co. v. Harris, 1 Ga. App. 714, 717 (57 S. E. 1076). As Judge Powell there pointed out, where the conclusion rests upon inferences only, these inferences, to amount to any evidence, must not only reasonably support ’the conclusion sought but render less probable all inconsistent conclusions.
The present conviction rests upon circumstantial evidence only. The test, then, is whether the testimony of the two arresting officers as to-.the defendant’s presence, his putative attempt to flee, and his incriminating statements, coupled with the testimony of his witness that the witness borrowed the defendant’s truck with the water on it and the defendant only came down to repossess the truck, plus the defendant’s statement, made a case against the defendant for possession of the fermented mash found at the still consistent with his guilt and also rendering less probable the inconsistent inference that he was innocent.
The evidence shows that no whisky was found at the still. Whether or not the defendant hauled the water which was on the truck, .this water had not been used in making mash, and the most adverse inference which can be placed on it is that it showed the guilt of the defendant of an attempt to make whisky, a different crime from that for which he was convicted. The officers found both fermented mash and new or unfermented mash at the site. One of them testified the defendant told him he brought water in his truck to make mash, the other that he said he brought “the water” down to the still to make mash. This appears to refer to water still on the truck; however, in view of the statement of the witness who insisted that he alone was guilty and had merely borrowed the defendant's truck which the defendant had come to the still to get, the jury could have understood that the defendant had brought water on previous occasions. He might, then, have brought water to make the old mash, which was fermented, or the new mash which was unfermented, but one inference is no more probable than the other. The evidence as to flight was contradicted by one of the State’s witnesses, but in any event flight alone will not authorize a conviction. Seay v. State, 63 Ga. App. 286 (11 S. E. *8732d 54). The testimony of the witnesses, taken together, is no more consistent with his guilt of possessing the fermented mash than with his innocence of that possession, the only possession upon which a conviction could be predicated. There was, accordingly, no direct evidence of guilt, and the circumstantial evidence offered was insufficient for its purpose.
I am authorized to say that Felton, C. J., Bell and Eberhardt, JJ., concur in this dissent.