The opinion
ON MOTION FOR REHEARING.
HAWKINS, Presiding Judge.
Appellant has filed a motion for rehearing supported by an able oral presentation, in which he insists that we were in error in holding the evidence sufficient to support the conviction. He contends that, the evidence showing that he was not at home at the time of the search, and the finding of the large quantity of liquors in the cellar, together with the fact that others were shown to be occupants of the house and were present at the time of the search, such an outstanding hypothesis was raised as to require proof that the others so situated did not have possession of the house, cellar and liquors. In connection with this contention, he calls attention to the lack of evi *151 dence showing when he was last seen at his home or his whereabouts at the time of the search.
As supporting his contention, he cited: Matis v. State, 272 S. W. 204 , 100 Tex. Cr. R. 509 ; French v. State, 132 S. W. (2d) 407 , 137 Tex. Cr. R. 500 ; Wooldridge v. State, 51 S. W. (2d) 727 , 121 Tex. Cr. R. 255 ; King v. State, 234 S. W. 1107 , 90 Tex. Cr. R. 289 ; Shelby v. State, 69 S. W. (2d) 82 , 125 Tex. Cr. R. 582 ; Curry v. State, 278 S. W. 855 , 102 Tex. Cr. R. 572 ; Belson v. State, 280 S. W. 209 , 103 Tex. Cr. R. 106 .
These authorities support the rule that, in cases of this character, where the evidence shows an opportunity or equal opportunity of another or others to possess the liquors charged to have been possessed by the accused, the State’s case, to be sufficient to convict upon circumstantial evidence, must disprove such outstanding hypothesis. Such rule is complied with, however, when the facts show that such other person or persons exercised no control over, or possession of, the liquors, and had no opportunity to do so. Stewart v. State, 74 S. W. (2d) 1003 , 127 Tex. Cr. R. 147 ; McCarty v. State, 57 S. W. (2d) 114 , 123 Tex. Cr. R. 34 .
In the Stewart case, supra, the accused was the operator of a tourist camp, consisting of cabins occupied by himself as well as tourists generally. A quantity of whisky was found near the camp and about thirty or forty yards, from the cabin occupied by the appellant. A trail led from this cabin to a beer garden, as also to the place where the whisky was found. Although other cabins in the camp were occupied by different persons, there was no trail leading from such cabins to. where the whisky was found. In holding such facts sufficient, we said.:
“There is nothing in the record to suggest ownership or possession of the whisky in any of the transient people occupying any of the cabins, if such there were at the time.”
To properly appraise appellant’s contention in the light of these rules, we have again carefully examined the facts. Appellant was not at home when the search was made. There is an absence of any evidence as to his exact whereabouts, when he left home, or how long he had been gone. His wife was present, and to whom the officers delivered a copy of the search warrant; and, before beginning the search, the officers waited for her to get in touch with the appellant. The wife produced *152 the key with which the cellar was unlocked, where the liquors were found. There is no proof that the residence or living quarters of the house was searched, or who, if anyone, was in the house at the time. There is no evidence as to where the appellant was when his wife got in touch with him while the officers waited to make the search; nor does the proof negative the fact that the key with which the cellar was unlocked was obtained from or furnished by the appellant.
As to the other occupants of the house (the mother and brother), there is an absence of any affirmative proof that they exercised any right of control over the house or the cellar.
Under these facts, we are unable to reach the conclusion that such other occupants of the house had access to the cellar or had the opportunity of having placed therein the large quantity of liquors found therein.
It is unlikely that anyone else would have or could have stored the amount of liquors as here involved in the cellar of appellant’s house, without his knowledge and acquiescence.
Believing the facts sufficient to support the conviction, the appellant’s motion for rehearing is overruled.