The plaintiff in error, hereinafter called defendant, was convicted in the county court of Kiowa county on a charge of having possession of intoxicating liquor with intent to sell the same and his punishment fixed at a fine of $50 and confinement in the county jail for a period of 30 days.
The evidence discloses that the deputy sheriff and an undersheriff saw the defendant carry two pint bottles of whisky under a sack into a closet some 30 yards from a filling station in the town of Lone Wolf. Going into the closet they discovered the whisky and arrested the defendant. One officer testified that the two pint bottles were full of whisky, and the other officer stated that one of the bottles was about half full. The proof of the possession of two pints of whisky is insufficient to raise the presumption of intent to barter, sell, or give away the same. The state failed utterly to show any intent to sell or give away any of the liquor possessed, either by direct or circumstantial evidence. The proper charge in this case should have been transportation of intoxicating liquor.
The evidence is insufficient to support the verdict of the jury. The case is reversed. *Page 228