The offense is possessing intoxicating liquor in a dry area for the purpose of sale; the punishment, confinement in jail for fifty days.
Officers went to the home of Cliff May in the afternoon of December 18, 1937, for the purpose of making a search for intoxicating liquor. Entering the house through the back door, they heard a woman say: "There is the law." They then heard some kind of noise inside which sounded like the breaking of bottles. May, the owner of the house, was standing in the door leading to the back porch, with a hatchet in his hand. Entering a room in the house, one of the officers observed appellant standing over some broken bottles on the floor. No one saw appellant break the bottles. Besides appellant there were four other people in the house. There was a quantity of whisky on the floor and also some lysol. No one saw any whisky in unbroken bottles. The officers estimated the quantity of whisky on the floor to be more than a quart.
Appellant timely and properly excepted to the charge of the court for its failure to submit an instruction on the law of circumstantial evidence. A requested charge on the subject was also presented and refused. We think the case was one depending wholly upon circumstantial evidence. It was not shown by direct evidence that appellant possessed more than a quart of whisky. There was no proof that he had sold or offered to sell any whisky. Under the circumstances, it was incumbent *Page 402 upon the State, in order to sustain a conviction, to prove that appellant possessed more than a quart of intoxicating liquor. Again, appellant's possession of the whisky was only shown circumstantially.
The judgment is reversed and the cause remanded.
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.