Davis v. State , 123 Tex. Crim. 115 ( 1932 )

If the testimony is understood, it is as follows: No whisky was found in the appellant's dwelling. In his barn was found a half gallon of whisky. Knowledge of its presence there was denied by the appellant. Kennedy, a neighbor, testified that he had placed the whisky in the appellant's barn, and that he had not given him notice of that fact. It seems from the record that a railroad track was near the home of the appellant; that near the railroad track was a branch or a ravine in which there had grown up weeds and Johnson grass. Among the weeds and Johnson grass there was found a bucket containing seventeen pints of whisky. It is not made clear by the record whether this whisky was found within the enclosure of the appellant or out of it. Apparently the whisky was hidden in the weeds. Somewhere in the same neighborhood there was found a keg which had at some time contained whisky. In the barn there were were found a keg and some jars. Appellant accounted for the presence of the empty keg and jars in the barn with the statement that they were there when he bought the place some five years before. He denied knowledge of the seventeen pints of liquor or of the keg found in the same neighborhood. The appellant had been previously indicted in a liquor case but had been acquitted.

The evidence being wholly circumstantial, it is not regarded by the writer as sufficient to support the conviction. Apparently the most cogent fact against the appellant was the fact that a half gallon of whisky was found in his barn. This was accounted for. The evidence of an unimpeached and disinterested witness was such that, if true, the presence of the whisky in the barn was not imputable to the appellant. It was admitted by one of the officers, and is apparent from other testimony, that the locality of the bucket containing the whisky may not have been within the appellant's enclosure. In any event, it was remote from his house and was hidden in the weeds. There is no evidence that the appellant knew it was there save the circumstances that it was found in that locality. Appellant denied knowledge of its presence there when testifying in his own behalf.

The analogy between the testimony relied upon in cases of circumstantial evidence is difficult to identify due to the fact that the circumstances in each case are different. In the cases of King v. State, 234 S.W. 1107; Mathis v. State,272 S.W. 204; Hester v. State, 262 S.W. 484; Bridwell v. State,15 S.W.2d 12, and Heeter v. State, 281 S.W. 565, there are exhibited facts held to be insufficient when tested by the law of circumstantial evidence to support the conviction. They are of sufficient similarity to the facts before the court, in the present appeal, to render them worthy of citation in support of the conclusion above stated, namely, that the evidence is not regarded such as pointing to the appellant as having committed the offense with that degree of certainty which excludes every other hypothesis save that of his guilt.

For the reasons stated, the motion for rehearing is granted, the order of affirmance is set aside, the judgment of the trial court is reversed and the cause remanded.

Reversed and remanded.