
    9517.
    Jackson v. The State.
    Decided April 2, 1918.
    Accusation of larceny; from city court of Camilla—Judge Bush. July 3, 1917.
    Robert Jackson was convicted under an accusation which charged him with having stolen from E. L.' Whitworth about 900 pounds of short cottonseed. ;E. L. Whitworth testified, that on being informed that some one had gone into his cotton-house he went to it and saw where a wagon had been driven up there and then driven off again, and that about five or six hundred pounds of seed were missing. “I then got in my car and traced this wagon track, and I followed it to Mr. Walter Acree’s place in the outskirts of Camilla. I left the track thpre. This track came on to town, but it came in a roundabout way. It ■went-several miles out of the way to, get to Camilla, and took all of the backwoods roads possible. It did not go directly by houses, but would avoid them as far as possible. The track made by this wagon was a narrow one,—that is, it was a standard-gauge wagon; the tires were smaller than those of a regular size two-horse wagon and larger than those of a one-horse wagon. . When I got to Walter Aeree’s place T left the track and drove directly to the oil-mill and questioned Mr. Nix. I then went to Robert Jackson’s house and drove up and asked his wife where he was, and she told me that he was in the field. I then went on over to where he was and I asked him if he., had carried some seed to town that morning, and he told me he had, and I said, ‘Where did you get them from?’ He said, ‘Out of my brother’s corn-crib;’ and I s.aid, Hiet’s go to your brother’s corn-crib ánd see about it,’ and we went up there and looked. There was no seed anywhere around his brother’s corn-crib, and I asked him to show me a seed, and said I would give him a dime a seed.- ,He was never successful in'pointing out to me a single seed; no seed were in the house. It had corn in it, but no seed in it or on the ground. When I got to Bobert’s house I found that he had a narrow-tired wag;on, the same as the one that made the track by my cotton-house. There are other people in that locality who own the same kind of wagon; in fact they are quite common.”
   Broyles, P. J.

The conviction was not authorized by the evidence, and the' court erred in refusing to grant a new trial.

Judgment reversed.

Bloodworth and Harwell, JJ.,- concur.

S. A. Nix testified: “On the day that Mr. E. L. Whitworth came to the oil-mill inquiring for some.seed I bought a small load of cottonseed from Eobert Jackson. There were five or six hundred pounds in the load. Mr. Whitworth came asking about the seed about 8 o’clock a. m., and I had bought these seed about one hour before that. I don’t remember whether I had bought other seed from other parties that day or not. At that time there were several other cottonseed buyers buying seed at Camilla.” There was no additional evidence. -

Charles Walt Jr., for plaintiff in error.  