The opinion
ON MOTION FOR REHEARING.
KRUEGER, Judge.
Appellant has filed a very able motion for rehearing in which he contends that we erred in our original opinion in holding that the State’s case did not rest on circumstantial evidence and therefore the trial court did not err in declining to instruct the jury on the law of circumstantial evidence or to submit appellant’s special requested instruction thereon. After a careful review of the testimony, we think appellant’s contention is well founded. The testimony shows that the appellant, Lee Bickerstaff, at the time in question, operated a place known as Paradise Inn, located in Cherokee County. The Inn consisted of a dance hall, tourist and sleeping quarters, etc. On the 7th day of January, 1939, the Sheriff of Cherokee County, accompanied by Leon Halbert, one of his deputies and Burwell Avera, went to the Inn, armed with a search warrant, to search the premises for intoxicating liquor. The search revealed sixteen pints of whisky concealed in the ceiling above a light fixture. The witness thought this was the sleeping quarters of appellant. Appellant had two employees who also had sleeping quarters at the Inn. At the time of the search, there were approximately thirty or forty people at the Inn. The record is silent as to how long appellant had operated the Inn and exercised control thereof. No witness testified definitely that the room, in the ceiling of which the whisky was found, was occupied by appellant nor that appellant knew the whisky was in there, or that he ever sold any at the Inn. Consequently, the conclusion that appellant secreted the whisky in the ceiling and possessed it is deducible from the circumstances stated. There is no direct and positive testimony that appellant occupied the room in the ceiling of which the whisky was found and that no other persons had access thereto. We think that the facts of this case are somewhat like the facts in the case of Puga v. State, 112 Tex. Cr. R. 431 . The rule announced by this court in that case seems applicable here. See also Berry v.
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State, 104 Tex. Cr. R. 114 . This court in those cases held that appellant was entitled to a charge on the law of circumstantial evidence and we think that he was entitled to such an instruction in this case.
We are also of the opinion that the court, under the facts of this case, should have given appellant’s special requested instruction defining the word “possession.” See Andrews v. State, 106 Tex. Cr. R. 357 .
The motion for rehearing is granted, the judgment of affirmance is set aside and the case is reversed and remanded.
The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.