
    15842.
    McEntyre v. The State.
    Decided November 12, 1924.
    Accusation of attempt to commit burglary; from city court of Eloyd county—Judge Bale. July 19, 1934.
    Coot McEntyre was found guilty under an accusation charging an attempt to commit burglary. On the trial it was testified, that on the night of November 13, 1933, a hole about five inches across, almost round, was broken in a plate-glass panel near the bottom of one of the double doors on the Third Avenue side of the store of the Hale Drug Company in the City of Rome, Georgia, which store fronts on Broad street; that this hole was about three feet from the lock, and a man could have put his hand through the opening. Policeman Poole testified, that on the night mentioned he and Policemen Guice and Miller, when coming up the west side of Broad street, heard the sound of breaking glass, and that, looking across Broad street and down Third Avenue towards the Third Avenue Hotel, he saw the defendant walking from the direction of the broken door towards that hotel. “He was about fifteen feet from the door when I saw him. I am sure it was the defendant. I knew him from his boyhood, and he wore a white sweater. It was after midnight, but it was him. Broad street at this point is 130 feet broad, and it is about 60 feet then down Third Avenue to where I saw him. We followed him and he turned into First Avenue, and we went in behind the buildings there to follow him. We heard noises back there like some one going through fences. Failing to find him, Miller and I went to his home in the fourth ward to find him, but failed. When we got back to Broad street Mr. Guice had arrested the defendant.” Policemen Miller and Guice testified to the same effect, and Guice added that when he heard the sound of the broken glass he looked up and saw the defendant in a stooping position; that he arrested the defendant on Broad street shortly thereafter while Miller and Poole were gone to the defendant’s home; that he met the defendant coming out of Third Avenue in front of the Hale Drug Company’s place; that the defendant walked to about the middle of the block and met him, and he then made the arrest; that the defendant wore or had a white sweater when arrested.
   Luke, J.

The ionvietion was dependent wholly upon circumstantial evidence, and the evidence was not sufficient to exclude every reasonable hypothesis save that of the guilt of the accused. It was therefore error to overrule the motion for a new trial.

Judgment reversed.

Broyles, O. J., and Bloodworth, J., concur.

The defendant, in his statement at the trial, denied that he broke the door of the Hale Drug Company, and said that when he was arrested he was on his way to a restaurant to get a sandwich, as he had been up late and was hungry, having been to a dance; that he had a white sweater at the time he was arrested, but they were not unusual; that many young men around town wore them.

M. B. Eubanks, for plaintiff in error. -

J ames Maddox, solicitor, cohtra.  