¶1*515 ON MOTION FOR REHEARING BY APPELLANT.
¶2 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.
¶3 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, Bridgewater 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 fifty or sixty 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 cases in his hand. The officers 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 *516 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 sufficient 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. Crim. Rep. 108, 268 S. W. 158. Branch’s Ann. Tex.. P. C., Section 1877, and authorities there collated. Our conclusion is further strengthened by the fact that when Bridge-water 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 bear” 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.
¶4 Reversed and remanded.