The plaintiff in error, hereinafter called defendant, was convicted in the county court of Carter county on a charge of selling whisky and sentenced to pay a fine of $50 and serve a term of 30 days in the county jail.
The contention is made that the evidence is insufficient to sustain the verdict. Two witnesses were used by the state. They were deputies of the sheriff's office and testified they came to the place and were concealed about 150 yards from the house, when a car containing three persons drove up and defendant came to the car with something in his hands, and that he and Jimmie Gray, one of the parties in the car, went to the rear of the car, and as the officers approached Gray ran some 40 or 50 yards and threw two jars of whisky against a tree and broke them.
Defendant testified that he had returned from the town of Wilson to his home when the car drove up and the parties in it asked for some water, and that he drew a pail of water, carried it to the car, and the parties drank it and put the remainder in the radiator, and that Jimmie Gray *Page 17 then told him he had some whisky in the back of the car which he had just bought from one Ed Cummings, and asked defendant if he wanted a drink and he assented, and they had taken out and started to open the jars when the officers came up; that Gray then ran and broke the jars. He was fully corroborated by the testimony of his wife, who testified she was near. There was also evidence that defendant had never been arrested before. The testimony of neither of the witnesses for the state is positive that defendant delivered the containers of whisky to the parties in the car. The explanation of defendant is reasonable, and we cannot say that the circumstances exclude every reasonable explanation other than the guilt of defendant.
The case is reversed and remanded.
BESSEY, P.J., and DOYLE, J., concur.