9695.

#### Reynolds *et al. v.*The State.

Decided July 30, 1918.

Indictment for burglary; from Burke superior court—Judge Hammond. March 21, 1918.

Gus and John Reynolds were convicted of burglary, under an indictment which charged them jointly with having broken and entered the barn of „J. H. Brinson and stolen 15 bushels of corn. Brinson testified, that when 'he got to his farm about nine or'ten o’clock in the morning he was informed that an old store on the farm, in which he had stored corn and other things, and which had been nailed up, was broken into and corn taken out; and on investigation he found that two planks had been prized off the rear of the building and ten or twelve bushels of corn taken out; that he and a negro, Tom. Gray, “tracked the parties that did the stealing,” and “could see where they came out from the road to the barn in a jersey wagon and poured the corn "out in a basket;” that there was a light rain just before day, and the wagon and the mule with it were tracked to the house of Gus Reynolds, and from that house to his son John’s corn crib. Shucks and ears of corn were found at different places in the road. The tracks were lost in deep sand in front of a house on the route, where pigs and chickens had been running in the road, but it was testified that the tracks were “picked up again in about 50 yards.” A part of the road was a rural delivery route. Brinson testified: “Some one could have come along this road, but not the same jersey wagon and that same mule; , . there was no other 'jersey wagon like this negro had. I did not take the wagon out and put it in the track.” On arrival at Gus Reynolds’s house Brinson told him of the loss of the corn, and asked if he "knew, anything about it. *553Brinson testified, that Gus answered that, he had no corn, but he (Brinson) found where the wagon had been driven to the window of a shed-room of Gus’s house, and saw -shucks on the ground there, and found four or five bushels of corn on the floor of the house; and Gus then said that he got this corn from' Mr. Harry Barefield, and had forgotten about it; that, he (Brinson) thereupon went to Barefield’s house, and Barefield’s corn did not match this corn; that he then went back to Gus’s house to find where the wagon went, and he tracked it across a field and into the road and to the house of John Beynolds, and saw a jersey wagon, with several ears of corn in it, under the shelter of John’s barn, and found four or five bushels of corn in John’s crib; that he then went to John, who was in the field, plowing, and John at first denied that he had any corn, but, when asked about the corn in the crib, said he had got it from Mr. Harry Barefield before day that morning; the witness then went to Barefield, and Barefield said he had not let John have any corn that year. Barefield also testified that he did ndt sell John any corn. It was testified that the corn at Gus’s house and John’s house “compared with” Brinson’s corn. There was conflict as to whether the corn at Bare-field’s house looked like Brinson’s corn. The testimony of Tom Gray was substantially in accord with that of Brinson. Barefield testified that when Brinson came to his house and asked about the corn, he told Brinson that Gus Beynolds had, come to, him for corn, and he told Gus to weigh it up, and Gus took seven bushels. Gus Beynolds made a statement to the jury, in which he said that the corn found at his house by Brinson was a part of seven bushels bought by him from Barefield several days before, and that he (Gus) let his son John have four bushels of that corn on the morning on which Brinson claimed to have lost the corn.

*552Bboyi.es, P. J.

In this ease the evidence relied Upon by the State to convict the defendants was wholly circumstantial,'and was not sufficient to exclude every reasonable hypothesis save that of the guilt of the accused. The court therefore erred in overruling the motion for a new trial.

*Judgment reversed.*

*Bloodworth and*Harwell, *JJ., concur.*

*553
      *Brinson & Ilaicher,*for plaintiff in error.

*A. L. FranJclin, solicitor-general, John M. Graham,*contra.