¶1On the 1st day of June, 1881, the shop of one Andreas Fierling was rifled of its contents, consisting of a variety of goods, such as are ordinarily kept in a village tailor shop. A search warrant was issued, and by a policeman of - the town of Brownsville the house' of Pedro Alvarez was searched and the goods found therein. Pedro Alvarez, Margarita Molano and defendant, Angel Casas, were arrested. Pedro and Margarita were jointly indicted and tried. Pedro was convicted and Margarita acquitted.
¶2One Befugio Gomez and appellant were jointly indicted for the same theft. Gomez, when the search was being made, fled, and has not been captured. Appellant was tried and convicted; the jury assessing his punishment *65at confinement in the penitentiary for the term of two years.
¶3The defendant, when the house was searched, was found in a sleep on a bed in a small room of the house of Alvarez. When arrested, on being informed of the charge, he denied having any knowledge of the matter. His saddle-bags being examined, no fruits of the crime were discovered. Under the bed, however, in a box was found some of the stolen pi’operty. With this box it was not shown that defendant had any connection whatever; nor is it shown that defendant had control of the room in which he was sleeping. On the other hand, the evidence tends to prove that Refugio was the occupant of the room,— he who broke and made good his escape, when he learned the business of the officer. The only fact tending to implicate defendant is “that some of the goods were found in this box.” Under the circumstances of this case, we are of the opinion that this is not sufficient. (The Reporters will give the evidence in full.)
¶4The court should have granted the defendant a new trial. The judgment is reversed and the cause remanded, with a new trial awarded.
¶5Reversed and remanded.