
    17741.
    Powell v. The State.
    Decided January 11, 1927.
    Burglary; from Johnson superior court — Judge Camp. October 23, 1926.
    Powell and codefendants were charged with having broken and entered the smoke-house of Mrs. Williams and taken from it certain meat. According to the testimony the meat was taken on the night of January 25, and on the 26th meat which Mrs. Williams testified was taken from her smoke-house was found in a branch on the Rawlings place, a large plantation on which twenty-five or thirty families were living, and on which Powell conducted a tw'ohorse farm at a distance of a mile or half mile from where the meat was found. Tracks of a mule and buggy were relied on to connect him with the taking of the meat. It was testified that the tracks began in woods about a quarter or half mile from the house of Mrs. Williams, several miles from where Powell lived, and went to his yard, which was unfenced, and close to a window of his house, and could not be traced farther than his yard, but that neither the mule nor the buggy was found there; that the buggy was found at the house of one of his codefendants, who lived nearer than he did to where the meat was found; that he had two mules, but neither of them made the tracks; that mule and buggy tracks were found near where the meat was found, but no tracks led from there to the defendant’s house, the tracks were not like those found at the defendant’s house, and “there was no evidence that anybody had been down to the meat from the defendant’s house;” that early in the morning of the 26th or 27th he was seen going to his house leading a mule that belonged to Rawlings, and the mule’s tracks “corresponded with the tracks in question;” that he requested a search of his place, and that no meat of the kind in question was found there.
    
      C. S. Claxton, J. L. Kent, for plaintiff in error.
    
      Fred Kea, solicitor-general, contra.
    Burglary, 9 O. J. p. 1075, n. 11.
   Luke, J.

The circumstantial evidence upon which the accused was convicted was not sufficient to exclude every reasonable hypothesis save that of the guilt of the accused, and, therefore, the court erred in overruling the motion for a new trial.

Judgment reversed.

Broyles, C. J., concurs. Bloodworth, J., absent on account of illness.  