1. Undisputed evidence by the sheriff of the county, the only witness in the case, that, following a two-hour surveillance of the defendant at a house which the defendant rented from a third person and occupied with his housekeeper, he found several pint jars of non-tax-paid whisky in a trap built in an outside toilet on the premises, and that during the two-hour surveillance he saw several taxicabs come to and leave the house, saw several persons- get out of the cabs and go into the house, saw the defendant, his housekeeper, the defendant’s brother, and an unamed boy and girl go to the outside toilet, saw the defendant go there three times, saw an unnamed girl go “a time or two”, and on one occasion saw the defendant, at his back door, hand a pint bottle of unknown contents to an unnamed person, and that he did not see the liquor placed in the toilet and did not know to whom it belonged, is insufficient to exclude every reasonable hypothesis save that of the guilt of the defendant on a charge of possessing non-tax-paid whisky. Harper v. State, 85 Ga. App. 252 (69 S. E. 2d, 102); Gambol v. State, 84 Ga. App. 293 (66 S. E. 2d, 197); Rhoddenberry v. State, 50 Ga. App. 378 (178 S. E. 170); Smith v. State, 150 Ga. 755 (2) (105 S. E. 364); Kennedy v. State, 23 Ga. App. 141 (97 S. E. 894); Wright v. State, 25 Ga. App. 176 (102 S. E. 834); Reese v. State, 42 Ga. App. 184 (155 S. E. 373); Roper v. State, 67 Ga. App. 272 (19 S. E. 2d, 746). The verdict was, therefore, unauthorized by thei evidence and the trial court erred in overruling the motion for a new trial.
2. The error assigned in special ground 1 of the motion for a new trial, upon the solicitor’s allegedly improper remarks and argument to the jury, is not likely to recur upon another trial and is not, therefore, considered here.
Pursuant to the act of the General Assembly, approved March 8, 1945 (Ga. L. 1945, p. 232) requiring that the whole court consider any case in which one of the judges of a division dissents, this case was considered and decided by the court as a whole.
Judgment reversed.
Sutton, C.J., Townsend and Worrill, JJ., concur. Gardner, P.J., and Felton, J., dissent. Bobby Lee Cook, for plaintiff in error. John W. Davis, Solicitor-General, contra.