The plaintiff in error, hereinafter called defendant, was convicted in the county court of Cleveland county on a charge of having possession of intoxicating liquor, and his punishment fixed at a fine of $50 and to be imprisoned in the county jail for 30 days.
The defendant was charged with the possession of three quarts of whisky with intent to sell the same. The state called as its only witness C.I. Adams, deputy sheriff of Cleveland county, who testified that he found three quarts of whisky about 6 o'clock in the evening on the Pete Decker place, and that Henry Richardson lived on the place at that time; that the place where he found the whisky was about 6 miles from the residence of the defendant; that the witness moved the whisky about 10 feet from where he found it, and that about 8 o'clock in the evening, the defendant, with one Pete Butler, came to the place where the whisky had been hid, apparently looking for the same; that the defendant remarked, "It was right here," looking about in the pumpkin vines where the whisky was. The witness testified he then arrested the defendant and told him he had the whisky. The witness claimed the defendant told him that he had come out there after a drink. On cross-examination the witness was asked if the defendant was ever in possession of the liquor, and he said, "No." He was asked if he knew who put the whisky there, and he said, "No".
That was all the evidence. The defendant moved the court to advise the jury to return a verdict of not guilty, which motion was overruled. We are of the opinion that it was error for the court to permit the case to go to the jury.
There being no evidence in the record to support the verdict of the jury, the cause is reversed. *Page 102