The defendant was charged with the larceny of 800 pounds of cottonseed “of what is known as Council Toole variety, of the personal goods of S. B. Heys and L. K. Heys.” Hpon the trial the evidence for the State was wholly circumstantial and failed to affirmatively establish that the cottonseed found in the possession of the accused were the identical seed alleged to have been stolen. The identity of the subject-matter of the larceny was not proved by testimony that the stolen seed were of the Council Toole variety and that the seed in the possession of the defendant were of the same variety. It follows that the conviction of the accused was unauthorized, and that the refusal to grant him a new trial was error.

Judgment reversed.