Circumstantial evidence held insufficient to exclude every reasonable hypothesis other than the guilt of the defendant.

DECIDED SEPTEMBER 16, 1942. The accused was convicted of the offense of possessing non-tax-paid whisky. The undisputed evidence disclosed that the whisky was not found in the defendant's dwelling house but was found on his premises, about sixty feet from said house, *Page 14 and near a path leading from the house to an outdoor toilet; that the public had access to the toilet; that any one could have stood in the path and reached the whisky; that the defendant operated on the premises a service-station and a two-story garage, a grocery store and soft-drink stand, and sold second-hand automobiles and repaired automobiles; that a negro man and his wife lived upstairs in the garage; that the premises were not enclosed by a fence or by anything else; that the public had access to the premises; and that people could and did walk around thereon. Under these facts the evidence tending to connect the accused with the offense charged was wholly circumstantial, and was not sufficient to exclude every reasonable hypothesis save that of his guilt. The court erred in denying a new trial.Kennedy v. State, 23 Ga. App. 141 (97 S.E. 894). This ruling being controlling in the case it is unnecessary to consider the special assignments of error.

Judgment reversed. MacIntyre and Gardner, JJ., concur.