
    BROWNLEE v. STATE.
    (No. 8269.)
    (Court of Criminal Appeals of Texas.
    April 16, 1924.)
    Intoxicating liquors <&wkey;>236(l I) — Evidence held insufficient to sustain conviction for unlawful sale.
    Circumstantial evidence held insufficient to sustain conviction for unlawful sale of intoxicating liquor.
    Appeal from District Court, Red River County; Beñ H. Denton, Judge.
    Bob Brownlee was convicted of the unlawful sale of intoxicating liquor, and he appeals.
    Reversed and remanded.
    T. T. Thompson, of Clarksville, and Sturgeon & Sturgeon, of Paris, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Atty., both of Austin, for the State.
   MORROW, P. J.

The appeal is from a conviction of the unlawful sale of intoxicating liquor; • punishment fixed at confinement in the penitentiary for a period of two years.

According to the state’s evidence, the appellant resided upon the farm of the witness Woods in a house containing four rooms and situated about 400 yards from the house of said witness, A barn was situated about 60 yards from the house. No one lived in the house except the appellant and his wife and children. The witness J. D. Woods .testified that he saw Fred Bell and Frank Stephens together in the neighborhood of the appellant’s home and each of them had a half-gallon of whisky.

Bell’s testimony was in substance this: He had bought a gallon of whisky on the night previous to his arrest. He got it at night upon a certain road near the Wood’s farm, though in what direction from the appellant’s house he was not able to state. He and Stephens went to a point near the bam and by the side next to the house and hollered, “Hello.” A man whom he did not recognize appeared. Owing to the darkness, he would not say whether the man came out of the house, but he was dressed in white. The man was told by Bell that he “heard he had something.” The man disappeared and returned in about 15 minutes with whisky in fruit jars, for which he was paid a certain amount of money. The witness was unable to identify the appellant or to give any description of him. On the next day after the arrest of Bell, because of his possession of the whisky, the officer went to the home of the appellant, but was unable to find him. He was not seen about the place for several days. It was shown that under his agreement with Woods, it was .his privilege and custom to go away from home and work for other people.

The evidence is purely circumstantial, and in our judgment is insufficient to support the conviction. All that can be said is that after Bell was arrested and found in possession of the whisky, he. explained his possession- of it by the statement that he had gotten it at nighttime from a person whom he did not know and who was near the house on the farm of Woods. It might have been th'e appellant, but the facts proved do not exclude the hypothesis that it was some other person, and establish his guilt 'to a moral certainty.

The judgment is reversed, and the cause remanded.  