
    29328.
    CLARK v. THE STATE.
    Decided November 14, 1941.
    
      
      LeRoy Finch, J. Richmond Garland), for plaintiff in error.
    
      Hal 0. Hutchens, solicitor-general, W. A. Foster Jr., contra.
   Gardner, J.

Although the evidence raises a strong suspicion of the guilt of the defendant, yet in the absence of proof that the defendant either owned the premises on which, the stills were located, or was in the control and operation of them, or participated directly or indirectly in their operations, we do not think it excludes every reasonable hypothesis save that of the guilt of the defendant. We think this is true notwithstanding the State sought to show by its witnesses, the officers, that the tenant, also the State’s witness, also for whom it vouched, had stated on the occasion of the arrests that the defendant and another jointly indicted had gone to the chicken house, the situs of the stills, where they remained for a long time, while in the meantime smoke was seen to come from the house where the stills were located. The State could not, without laying the proper foundation, impeach its own witness; nor could it set up by impeachment as affirmatively established facts necessary to convict when their existence was denied by the witness whom the State would impeach.

The court erred in overruling the motion for new trial.

Judgment reversed.

Broyles, G. J., concurs. MacIntyre, J., dissents.  