
    16173.
    Carney v. The State.
    Decided March 27, 1925.
   Duke, J.

The evidence upon which the accused was convicted of manufacturing intoxicating liquor is wholly circumstantial, and not sufficient to exclude every reasonable hypothesis other than that of his guilt. It was therefore error to overrule his motion for a new trial.

Judgment reversed.

Broyles, O. J., and Bloodworlh, J., concur.

Conviction of manufacture of liquor; from Floyd superior court —Judge Wright. December 17, 1924.

From the evidence it appears that the defendant M. L. Carney and his son (jointly indicted) owned land divided by a public road, on one side of which were the defendant’s farm and residence, and on the other side their blacksmith shop and unfenced woods which ran up on the side of a mountain; and that in these woods officers found a hot still and the apparatus pertaining to it and about 900 or 1000 gallons of fermenting beer at a distance variously estimated at from a fourth to three fourths of a mile from the blacksmith shop. The shop was on the public road and about 50 or 75 yards from the defendant’s residence. Neither the shop nor the residence could be seen from the still. There was no cultivation or fencing near the still. It was testified that a pathway led directly from the still to the blacksmith shop and went by the shop “across to the house.” Oiie of the officers testified that this pathway was the only evidence of travel leading away from the still, except little paths out to the woods, one of which led to where wood had been cut and an ax and hidden tools were found. Other witnesses testified that there were trails which connected with the above-mentioned pathway and with an abandoned mine in the woods and an old wood road which was frequently used, and a trail across the mountain, and that anybody traveling the public road might have turned off and gone to the still. No search for liquor was made on the defendant’s premises at his home, except in an outhouse, and none was found there. It was testified that he was sick at the time; but the evidence as to this was contradictory. Other stills had previously been found in the woods in the same neighborhood. There were other houses in the locality.

Denny & Wright, for plaintiff in error.

J. F. Kelly, solicilor-general, F. 8. Taylor, M. N. Anderson, contra.  