#### STATE v. LUCIEN EPPS and MATTHEW EPPS.

(Filed 14 December, 1938.)

Larceny § 7: Receiving Stolen Goods § 6—

Circumstantial evidence of appealing defendants’ guilt of larceny and receiving fertilizer of a certain brand held, to raise only a strong suspicion of guilt, and was insufficient to be submitted to the jury.

*578Appeal by defendants from Sinclair, J., at April Term, 1938, of RobesoN.

Reversed.

Tbe defendants were indicted, with Neill Goins, for larceny and receiving of a number of bags of fertilizer, tbe property of J. B. Mc-Callum. All three were convicted of tbe offenses charged, and Lucien Epps and Matthew Epps appealed.

Tbe evidence was to tbe effect that MeCallum bad bought about 800 bags of fertilizer, tbe larger part of which be bad distributed to several farms. Eight bags of tbe fertilizer sent to a farm, on which a tenant named Jordan was manager, were missing. Fertilizer was also missed from another farm.

Jordan testified that tbe fertilizer was 4-7-5, and identified bags exhibited to him as being similar to those in which the fertilizer was packed. The bags had “cotton fertilizer” written on them and had the same brand. The fertilizer was kept under a shed, about thirty yards from the road.

On the morning of 1 May witness discovered eight sacks were gone. Officers tracked an automobile, from the imprint of its tires on the road, to the premises of Will Goins, a defendant, and found a car having tires similar to those making the imprints they had followed parked in Goins’ yard, and it was identified as Goins’ car.

At some point on the route there was evidence that the Goins car had stopped. There were marks from which witnesses inferred the load had been transferred, partly at least, to another car. An attempt to trace the tracks of another car as possibly the one to which the fertilizer was transferred failed.

About a week afterward a witness for the State went to the home pf Matthew Epps, and saw Matthew putting out fertilizer. He had ten bags in the field. It was branded as made by the Maxton Oil & Fertilizer Company — “MOFCO”—and was 4-7-5 fertilizer. The fertilizer was being put on the farm of Lucien Epps by his son Matthew. Procuring a search warrant, witness later searched the premises, found one bag of MOFCO on the porch, with a small amount of fertilizer in it. In the loft of the house were found eight fertilizer bags that had been washed. These were exhibited in court, and were branded 4-7-5 MOFCO. Matthew said he got the fertilizer from his father, Lucien Epps. Lucien, in turn, stated that he got it from W. L. Biggs, at Johns Station; said he might have gotten some from McRae Company, at Maxton.

Biggs testified he sold fertilizer to Lucien Epps, but not of that brand.

J. G. Purcell, Of the McRae Company, said his company gave orders to the Oil Company to supply its customers, but had given none for the defendants. He gave a list of these orders, in which the names of none of the defendants appear.

*579There was further evidence of a like nature in an apparent attempt to trace all the fertilizer sold under this brand, so as to exclude the possibility that defendants had come by the fertilizer in a legitimate way.

The defendants moved for judgment of nonsuit, which was denied. From the judgment upon the verdict, Lucien Epps and Matthew Epps appealed.

Attorney-General McMullan and Assistant Attorneys-General Bruton and Wettach for the State.

J. E. Carpenter for defendants, appellants.

Per Curiam.

The evidence does no more than raise a strong suspicion of guilt as to appellants and is insufficient to go to the jury. The motion for nonsuit should have been allowed, and the judgment is

Beversed.