Appeal from the county court of Cotton county. Conviction for unlawful manufacture of intoxicating liquor, to wit, corn whisky. Punishment fixed at a fine of $100 and imprisonment in the county jail for 30 days. Judgment rendered February 28, 1922. Petition in error and case-made filed in this court April 18, 1922.
Among the errors assigned are that the trial court erred in refusing to direct the jury to return a verdict of not guilty because of the insufficiency of the evidence and refusal *Page 233 to grant plaintiff in error a new trial for that reason. Plaintiff in error was charged with the crime of manufacturing corn whisky. There is no evidence in the record to show that he ever at any time manufactured corn whisky. The only evidence that in any way tends to connect him with such crime is that, on a search of his premises, three pints of whisky were found concealed in a barn over which the plaintiff in error had control. Had this prosecution been for unlawful possession of intoxicating liquor with intent to sell the same there would have been more substantial evidence to sustain the verdict and judgment, but such offense is not necessarily included within the charge of manufacturing whisky, and the mere proof of possession of whisky, together with slight circumstantial evidence tending to prove intent to sell, is not sufficient to sustain a conviction for unlawfully manufacturing the whisky possessed, even if possession be conclusively proved to be in the accused.
The Attorney General has filed a brief in this case virtually admitting that the evidence is insufficient to sustain the verdict and judgment. With such conclusion we agree, and for reasons stated the judgment is reversed.