118 So. 625 | Miss. | 1928
The appellant was left at the house, where the warrant was served upon him, in the company of two of the deputies, when the sheriff and the other parties went upon the search, so appellant was not with the party *552 when the barrel of mash and the parts of the distillery were found.
Objection was made to the introduction of the evidence because of the failure to produce the affidavit and the search warrant, and overruled by the trial judge at the close of the case.
At the conclusion of the state's evidence the defendant moved to strike out the state's evidence, and to grant a peremptory instruction of not guilty, which was overruled, and exception taken.
The defendant thereupon testified in his own behalf that he had not had possession of the still, and had no knowledge of the existence of the still; denied that he had made the tracks leading along the pathway to and from the still; and testified that he did not know where the boards came from, but that in building his garage he sawed off the ends of some of the boards, and left them there; he did not know who got them, if they were the boards found by the sheriff. He also testified that the path led to a farm which was rented or leased to two other people, who grew crops thereon, and this path was traveled by them, as well as by himself, in going to and from their home to his place.
They also offered the tenants, who testified that they used the pathway when necessary to go to the appellant's house from their farms, and that they frequently traveled the path, but that they did not know anything about the still or the things seized, until after the seizure was made, and that they did not operate the still.
It was clearly proven that the parts of the still and the barrel of mash were not upon the premises of the appellant, but were situated between a quarter and a half mile distant from his residence, and some two hundred and fifty yards from his land line.
We think, where evidence obtained by a search is offered, the search warrant and the affidavit upon which it is founded should be produced, or their loss established, *553
and if lost the substantial contents of them should be proven. But considering all the facts in this case, and admitting as being true all that they tend to prove, they are not sufficient to exclude every reasonable hypothesis of innocence. Before circumstantial evidence can amount to proof, it must not only be consistent with the facts proven, and tend to establish guilt, but it should exclude every other reasonable hypothesis save that of guilt. Algheri v. State,
It follows, from these views, that the conviction of the appellant cannot be upheld, and the judgment is reversed, and judgment discharging the appellant entered here.
Reversed and rendered.