On information charging that in Marshall county September 14, 1934, General Kizziar, the defendant, did then and there have possession of intoxicating liquor with intent to violate the prohibitory law, he was tried and convicted, and, in accordance with the verdict of the jury, was on December 5, 1934, sentenced to confinement in the county jail for 60 days and to pay a fine of $100 and all costs.
From the judgment, he appeals and assigns as error that the evidence is insufficient to sustain the verdict and judgment.
The state relied for this conviction on the testimony of Harmon Spicer and Joe Everett, deputy sheriffs. Their testimony shows that they were following the defendant on the highway and were delayed for a few minutes on a high center. Shortly after they came upon the defendant as he was coming out of a ditch by the side of the road; that he then lowered the turtleback of his car, jumped in, and drove away. The officers stopped where the defendant got out of his car and there in the ditch found about twenty gallons of whisky in one keg and several fruit jars. They also found fresh tracks from the point where defendant's car stopped to where they found the whisky.
There was no testimony on the part of the defense.
Under the statute, questions of fact are to be decided by the jury (section 3062, St. 1931), and, where competent evidence has been introduced tending to prove the material allegations of the information, its weight and sufficiency to sustain the conviction is for the jury.
The judgment and sentence appealed from is therefore affirmed.
DAVENPORT, P. J., and EDWARDS, J., concur. *Page 226