
    MELTON v. STATE.
    (No. 8463.)
    (Court of Criminal Appeals of Texas.
    Dec. 10, 1924.)
    Intoxicating-liquors <©=>236(19) — Evidence insufficient to support conviction for manufacturing.
    Evidence held insufficient to support conviction for manufacturing.
    Appeal from District Court, Taylor County; W. R.-Ely, Judge.
    S. 0. Melton was convicted of manufacturing intoxicating liquor, and he appeals.
    Reversed and remanded.
    Stinson, Coombes & Brooks, of Abilene, for appellant.
    Tom Garrard, State’s Atty., and Grover C. Morris, Asst. State’s Attyi both of Austin, for the State.
   MORROW, P. J.

The conviction is for the manufacture of intoxicating liquor; punishment fixed at confinement in the penitentiary for a period of one year.

The’ evidence ' is wholly circumstantial. The facts are not conflicting. The sheriff •and other-'Officers found at the home of the appellant a can, coil,' and four quarts of com whisky. The coil was in a sack, the whisky was in bottles, and all were in one box which was setting in one of the rooms of the two-room dwelling occupied by the appellant and his wife. There were found no other utensils or equipment usable in the manufacture •of whisky. There was no mash. There was no- direct- evidence that the articles had been used- for distilling purposes, but it was affirmatively shown by the state’s testimony that the articles found were not adequate ■for making whisky, though with some changes or 'adjustment they could, if accompanied by other articles, be used for that purpose. Appellant and his wife testified' that they occupied the dwelling mentioned as cotton pickers, and that while hunting in the vicinity they found ■ the articles mentioned hidden in' a thicket; that upon finding them they were carried'to their home and placed where they were found by the officers. No use had been- made of them-, though the ap•pellant’s wife said that after she discovered that the bottles contained whisky, she 'concluded to use the contents as a lotion- for her crippled foot, that she intended to use the can as' á container for'flour. ''

The testimony of the appellant and -his wife present a hypothesis consistent with innocence, 'and, tested by the Taw-of circumstantial evidence, the facts given in evidence by the state are not sufficient to overcome the; presumption -Of idnocence ¡with which the 'ac-. cused was surrounded by the law of the land. Illustrative cases are Hardaway v. State, 90 Tex. Cr. R. 485, 236 S. W. 467; Williams v. State, 88 Tex. Cr. R. 402, 227, S. W. 316, and authorities cited.

The- judgment: is reversed, and thé'cause remanded. 
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