The evidence, being circumstantial, was insufficient to exclude every reasonable hypothesis save that of the guilt of the accused.

DECIDED NOVEMBER 14, 1941.

The defendant and another, jointly indicted, were arrested at the home of a tenant in charge of premises where four large whisky stills, recently in operation, were found in a "chicken" house located in a pasture and about 125 yards across and beyond a public road from the house which the tenant was occupying. As to this defendant the officers testified: "His legs were smutty, dirty, where he walked around, like he had walked in ashes, and they were plumb dirty, smutty. His overalls had smut on them and they were wet around the bottom." As to the other defendant, not on trial, the officers testified: "Noel Cole was smutty too, a little, and his trousers were wet and had ashes in the cuff of his pants. I picked it up and looked at it. The ashes looked very much like ashes of the still house. There was an odor from him just like the still." At the time of the arrests the defendants were eating supper at the tenant's house where they were visiting. They did not own nor did they have in charge the premises where the stills were located. The chicken house was 20 by 50 feet, and was electrically lighted by a wire leading from the tenant's house. At the stills there were about 900 gallons of beer and about 85 gallons of whisky. The tenant swore that he had been occupying the house for a time and that he did not know who operated the stills, and that so far as he knew these defendants had not been in or about the chicken house, and that he had not seen them there or doing any acts in furtherance of the still operations. According to the tenant these defendants were at his house eating supper and they were going to move to a small house on the place. He testified: "when I got back they were raking leaves [the day of the arrest] out there at the little house, and scouring it out or doing something. I don't know how long they worked there; I didn't pay any attention — they were fixing to move [there]; that's what they told me." However, the officers making the arrests swore that the tenant told them on the occasion of the arrests and in the presence of these defendants, which they contended the defendants did not deny, that he saw the defendants go into the chicken house where they remained for a long time, and that in the meantime he saw smoke coming from the chicken house. The tenant denied this. These witnesses were the State's witnesses.

GARDNER, J.

1. 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, C. J., concurs. MacIntyre, J., dissents.