
    MISSOURI v. STATE.
    (No. 11930.)
    Court of Criminal Appeals of Texas.
    June 13, 1928.
    1. Burglary @=4I (I) — Circumstantial evidence held insufficient to warrant conviction of burglary of barn in nighttime.
    Circumstantial evidence held Insufficient to support conviction of burglary by breaking into another’s barn in the nighttime.
    2. Criminal law @=552 (3) — Conviction on circumstantial evidence, not excluding every reasonable hypothesis other than accused’s guilt, cannot be sustained.
    Conviction based on circumstantial evidence cannot be sustained, where the circumstances -do not exclude every other reasonable hypothesis except that of accused’s guilt, and proof which only amounts to a strong suspicion or mere probability is not sufficient.
    Commissioners’ Decision.
    Appeal from District Court, Ft. Bend County; M. S. Munson, Judge.
    Jim Missouri was convicted of burglary, and he appeals.
    Reversed and remanded.
    See, also, 4 S.W.(2d) 68.
    Heidingsfelder, Kahn & Branch, of Houston, for appellant. '
    A. A. Dawson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.'

The offense is burglary; the punishment, confinement in the penitentiary for two years.

Appellant challenges the sufficiency of the evidence. The barn of Mr. Pitts was burglarized at about 2 a. m. Hearing a noise, the injured party went to his barn and found that the door had been tom off. A horse belonging to appellant was found unsaddled and tied to ,a fence about 200 feet from the burglarized barn. Bloodhounds were brought to the barn and from there took a trail which led to appellant’s house. Appellant was at home when the dogs stopped at his place. His shoes were on the gallery. Although appellant stepped out on the gallery when the dogs reached the house, the dogs made no demonstration showing that they recognized appellant. Appellant’s wife and a nephew, who was about 17 years old, lived in appellant’s home. A horse belonging to Tony Gamble was also found tied near the bam. It is not shown where Gamble lived relative to appellant’s home. Gamble testified that he did not tie his horse in the vicinity of the barn. Neither does the record show who tied appellant’s horse at the point where it was found. No property belonging to the injured party was found in the possession of appellant. Appellant and his witnesses testified that he was at home at the time the offense was committed.

As we understand the record, the state relied upon two circumstances to connect appellant with the commission of the offense: First, that a horse belonging to appellant was found near the burglarized barn; second, that the bloodhounds took a trail from the bam which led to appellant’s house. There is nothing in the record to indicate that appellant tied his horse near the barn. As far as the record is concerned, appellant’s nephew or some other person could have taken, the animal to the burglarized premises. As to the second circumstance, the bloodhounds made no demonstration on reaching appellant’s house, although appellant was in their view when they stopped. There is nothing to indicate that they had been trailing appellant. His nephew lived in the same house, and the conclusion that the dogs were trailing him is as reasonable as the conclusion that they were trailing appellant. At most, the circumstances relied upon'by the state cast a strong suspicion upon appellant, and show a mere probability that he committed the offense. The evidence shows as strong a case against another as it does against appellant, and there is no proof that appellant acted with the other in the commission of the offense. The circumstances relied upon by the state wholly fail to exclude every other reasonable hypothesis except that of appellant’s guilt. This court will not sustain a conviction based on circumstantial evidence, where the circumstances do not exclude every other reasonable hypothesis except that of the guilt of the accused. Proof which only amounts to a strong suspicion or a mere probability is not sufficient to support a conviction. Branch’s Annotated Penal Code, § 1877.

Believing that the evidence is insufficient to support the conviction, the judgment is reversed, and the cause remanded.

PER CURIAM. 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. 
      @=»For other eases see same topic and KEY-NUMBER in all Key-NumbereJ Digests and Indexes
     