
    14550.
    Waters v. The State.
    Decided June 12, 1923.
    Conviction of attempt to make liquor; from Catoosa superior court — Judge Tarver. March 13, 1933.
    Under an indictment charging the manufacture of intoxicating liquor, John Waters was found guilty of an attempt to commit this offense. From the evidence it appeared that two boxes containing, about 600 gallons of beer of the kind used in the making of whisky and which looked as if it “ was about ready to run off,” a furnace which looked as if a still had been in it, a cap, and ashes were found by officers at a spring and within a few steps of where there was formerly a sawmill, about 300 yards from the defendant’s house; on an 80-acre tract of land belonging to k person who had rented to him “ what he could clear up ” in that tract. No still was found on the premises. The witnesses could not say whether the beer was intoxicating. The place where the furnace and the beer were found could not be seen from the defendant’s house or from his barn, there being a hill and woods which obstructed the view. While the officers were hid near the spring a couple of children came there and got water and carried it to the defendant’s house. The children saw the officers. The officers then went to the defendant’s house and searched it, and 'found no whisky or beer in or about the house. The defendant was sitting in his front yard. The spring mentioned was “the only spring of supply ” on the 80 acres. It was testified that the defendant had “ a cow and may be a couple of horses or mules,” and a pasture, and that the spring was outside the pasture fence; that “he would have to water his stock and get his water for home use either out of the spring or haul it about a mile;” that he was “ often down at this spring with the wagon, hauling water;” that he made a crop, but did not cultivate the land to this place; that at the time of the finding of the beer and the furnace, or shortly before that time, the defendant had a contract to cut timber for Black’s sawmill, and was cutting it daily for three or four weeks at a distance of about a mile from where he lived, going to work about 6:30 o’clock and quitting at 5. The defendant’s house was the nearest one to the place where the beer was found. It was about half a mile or a mile to any other house. An old sawmill road led -from that place to the public road at or near the defendant’s house, and other paths led into the woods from the same place. The defendant, in his statement at the trial, asserted his innocence.
   Broyles, C. J.

Tlie evidence relied upon" for the conviction of tile defendant was entirely circumstantial and did not exclude every reasonable hypothesis save that of his guilt. The court, therefore, erred in overruling the motion for a new trial.

Judgment reversed.

Luke and Bloodivorth, JJ., concur.

M. L. Harris, McClure & McClure, for plaintiff in error,

cited: 23 Ga. App. 141; 27 Ga. App. 603; 20 Ga. App. 748; 13 Ga. App. 626; 6 Ga. App. 574; 116 Ga. 516; 4 Ga. App. 832; 9 Ga. App. 470; Id. 574; 81 Ga. 653; 115 Ga. 813.

J. M. Lang, solicitor-general, contra.  