
    BATTLES v. STATE.
    (No. 10972.)
    Court of Criminal Appeals of Texas.
    June 24, 1927.
    On State’s Motion for Rehearing, Nov. 16, 1927.
    On Appellant’s Motion for Rehearing, Jan. 11, 1928.
    I. Criminal law <&wkey;784(l) — 'Where all evidence against accused is'circumstantial, refusal to instruct on law of circumstantial evidence is error.
    Where all evidence against accused is circumstantial, refusal to instruct jury upon law of circumstantial evidence is error.
    On State’s Motion for Rehearing.
    2.. Criminal law <&wkey;>939(3") — Denial of new trial on affidavit of newly discovered evidence of witness at trial held not abuse of discretion; due diligence not having been shown.
    Denial of motion for new trial based on newly discovered evidence’ of officer, that he did not discover any intoxicating liquor on premises of accused, held not abuse of discretion; due diligence in ascertaining facts within knowledge of witness who testified at trial not having been exercised.
    3. Intoxicating liquors <&wkey;249 — -Search warrant for liquor, designating premises and nature of liquor, held to substantially comply with constitutional and statutory demands.
    Search warrant for liquor, describing premises as “situated 15 miles north of Nocona, Tex., on a 4-acre tract of land at and near the Rolan gin, in possession of John Battles,” and describing liquor as “intoxicating liquor possessed in violation of law, kind and quantity of which are unknown to affiants,” held substantial compliance with constitutional statutory demands.
    On Appellant’s Motion for Rehearing.
    4. Intoxicating liquors (&wkey;>236(6f/2) — In prosecution for unlawful possession of intoxicating liquor, evidence held insufficient to sustain conviction.
    In prosecution for unlawful possession of intoxicating liquor, evidence, which was wholly
    circumstantial, held insufficient to sustain conviction.
    5.Criminal law &wkey;»552(3) — To sustain conviction on circumstantial evidence, it must exclude every reasonable hypothesis save guilt.
    Where conviction is obtained on circumstantial evidence, such evidence must exclude every reasonable hypothesis save guilt of accused.
    Appeal from District Court, Montague County.; Vincent Stine, Judge.
    John Battles was convicted of unlawful possession of intoxicating liquor, and he appeals.
    Reversed and remanded.
    James R. Graham, of Nocona, Jameson & Crawford, of Montague, and Donald & Donald, of Bowie, for appellant.
    Sam D. Stinson, State’s Atty., and Robt. M. Dyles, Asst. State’s Atty., both of Austin, for the State.
   MORROW, P. J.

The unlawful possession of intoxicating liquor is the offense; punishment fixed at confinement in the penitentiary for one year.

Appellant resided at a village composed of six or seven dwelling places. Besides his dwelling, he had a store, barn, and gin. In the store he sold cold drinks. The premises were searched. There was a failure to find any intoxicating liquor of any character in any of his buildings, but in the barn there were found some empty bottles, the character of which might have been for beer or might have been for “near beer.” In the weeds some distance from the appellant’s barn there were found several cases of what the officers called beer and “home brew.” These cases of beer were in what was described as. a “big pasture,” and were about the same distance from places occupied by others as from the appellant.

There was one witness who testified that some time ago he had bought whisky in the house of the appellant but that he did not buy it from the appellant. The date of the transaction is not given at all. The witness said, however, that the appellant was in the store at the time he bought whisky from another man. The witness did not state that the appellant was cognizant of the transaction; that the whisky was not in the store but that the man went out to some place and got it. *

The evidence adduced by the appellant was. that the place where the alleged contraband liquid was found was not on his premises or on the premises under his control. This comes from others than the appellant, and was not controverted by any direct testimony.

The chief complaint is the refusal of the court to instruct the jury upon the law of circumstantial evidence. This fault in the •charge was properly raised by exceptions duly preserved. State’s counsel concedes that the conviction rests upon circumstantial evidence alone, and in this view we concur.

The judgment is reversed, and the cause remanded.

On State’s Motion for Rehearing.

The reversal heretofore ordered was based upon the failure of the court to charge the jury upon the law of circumstantial evidence. It is now made to appear that the court, by a supplemental charge, gave adequate instructions upon that subject.

As grounds for a new trial, appellant ■claimed that he had discovered new and material evidence. Upon the trial it was shown that the search of the premises was made by A. E. Bridgewater and Capí. G. T. Cooper. The purported newly discovered evidence is the affidavit of Capt. Cooper to the effect that he did not discover any intoxicating liquor upon the premises of the appellant. It was shown in the motion for new trial that, although Cooper was present at the time of the search and testified as a witness on the trial, the appellant had used no diligence to ascertain that the witness would give the testimony embraced in the affidavit. Moreover, Cooper was one of the persons named in the search warrant as having made the affidavit upon which it was issued. The diligence which the law requires is not shown to have been exercised, in ascertaining the facts within the knowledge of the witness. The discretion of the trial court was not, in our judgment, abused. C. C. P. 1925, art. 753, subd. 6; Vernon’s Tex. Crim. Stat. 1925, vol. 3, p. 15, notes 25 and 26; Lewis v. State, 82 Tex. Cr. R. 285, 199 S. W. 1091; Jackson v. State, 81 Tex. Cr. R. 597, 196 S. W. 826; Gregory v. State, 105 Tex. Cr. R. 674, 200 S. W. 176; McVerse v. State, 103 Tex. Cr. R. 140, 280 S. W. 583.

The sufficiency of the search warrant (which, by the way, was not introduced in evidence) is attacked upon the ground that it did not sufficiently describe the location of the liquor. The premises where the liquor was located were described as “situated 15 miles north of Nocona, Tex., on the 4-acre tract of land at and near the Rolan gin, in possession of John Battles,” and the liquor is described as “intoxicating liquor possessed in violation of law, the kind and quantity of which are unknown to the affiants.” In the matter of the description of the premises and the liquor, it is believed that there was a substantial compliance with the constitutional and statutory demands. See Hernandez v. State (No. 10711) 3 S.W.(2d) -, not yet reported; i Wilson v. State, 106 ,Tex. Cr. R. 75, 290 S. W. 1103; Story v. State (Tex. Cr. App.) 296 S. W. 296.

Eor the reasons stated, the state’s motion for rehearing is granted, the order of reversal is set aside, and the judgment of the trial court is affirmed.

On Appellant’s Motion for Rehearing.

HAWKINS, J.

Appellant insists that the judgment should be reversed on account of the insufficiency of the evidence. The other questions presented in the motion have been considered and will not again be discussed. The judgment was originally reversed on confession of error predicated on the mistaken idea that the' court gave no charge on circumstantial evidence. No charge on this subject was embraced in the main charge, but was contained in a supplementary instruction. This was called to our attention in the state’s motion for rehearing. That point and appellant’s claim of newly discovered evidence challenged our attention in writing on rehearing for the state, and the particular point now stressed by appellant was not considered.

Two officers, Bridgewater and Cooper, conducted a search of appellant’s premises. The record does not show that liquor of any kind was found in appellant’s store or dwelling house. The officers then separated; Bridge-water going into a pasture where he found in some weeds three or four cases, some being empty and others containing, what the witness called “beer.” This pasture was not in appellant’s possession, .and he exercised no control over it. Other dwellings and stores were situated as close to where Bridgewater found the liquor as were those of appellant. There was no evidence showing that appellant was connected with this liquor. Cooper was not present at the trial, being sick at the time. While Bridgewater was searching in the pasture, Cooper was investigating appellant’s barn. Bridgewater says when he got through with his search he went to the barn, and that Cooper was standing in front of it and there were some cases standing there in which were some 50 or 60 pints of “beer.” The witness says, “I called it beer; it was ‘home brew.’ ” Bridgewater had seen Cooper going in the barn and other places two or three times, but did not know- whether all these places were on appellant’s property; he saw Cooper come out from somewhere with- eases in his hand. 'The officer took all of the full bottles to town and delivered them to the sheriff. The sheriff testified that he drank one bottle of it and that in his opinion it ¿was intoxicating. Appellant makes the point that there is no evidence to show whether the liquor sampled by the sheriff came from the pasture or the barn; that the record is silent as to whether the liquor found in the two places was of the same kind; that, if the liquor which the sheriff said was intoxicating came from the pasture, it was not found in appellant’s possession and therefore would furnish no criminative evidence against him. It is further contended that, if Bridgewater’s evidence be suffieieiit to show that some liquor was taken from appellant’s barn, there is no evidence to show that it was intoxicating, unless the bottle tested by the sheriff be one taken from the barn, and, there being uncertainty upon that point, the state has failed to meet the requirements of the law demanding that circumstantial evidence must exclude every reasonable hypothesis save the guilt of accused. We think his contention must be sustained. Albaneso v. State, 99 Tex. Cr. R. 108, 268 S. W. 158; Branch’s Ann. Tex. P. C. § 1877, and authorities there collated. Our conclusion is further strengthened by the fact that, when Bridgewater came from the pasture, he went into the barn himself but found only a case of empty bottles, and also by the. recitals in Cooper’s affidavit attached to the motion for new trial to the effect that he found no intoxicating liquor on appellant’s premises, but only found some empty “near beer” bottles which were covered with dust and cobwebs.

A closer scrutiny of the record, in view of appellant’s motion, makes it our plain duty, under well-recognized rules of law, to grant the motion, set aside the judgment of affirmance, and reverse the judgment of the lower court, and remand the cause for a new trial, and it is so ordered. 
      
      
         Rehearing pending.
     
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