The defendant was charged with the possession and sale of intoxicating liquor in violation of law. From a conviction by a jury, and a judgment thereon, he has appealed.
The Attorney General has substantially confessed error herein. He states his belief in his brief that the evidence in the case was insufficient to warrant a conviction. It was shown that the witness Esmay, in the evening of June 2, 1925, at a dance, asked one Roy Anderson if he, Anderson, could get him some whiskey. Anderson answered in the affirmative, and it was agreed between them, and them alone, that Anderson should take the whiskey to Esmay's shop. Anderson brought the whiskey as he had agreed, and Esmay paid him for it. No connection of the defendant with this transaction, upon which the charge herein is based, was shown, except that it appears that defendant drove Anderson to Esmay's shop in his automobile, *Page 392 and the whiskey was delivered to Esmay by Anderson in defendant's presence, outside of the shop. The state sought to impeach Esmay, its own and substantially only witness, by having him testify that he had previously signed a statement to the effect that Anderson sold him part and that defendant sold him another part of the whiskey. But the witness substantially repudiated his former statement, and that statement did not subserve the purpose of affirmative testimony in this case. Crago v. State, 28 Wyo. 215, 202 P. 1099. Anderson testified that defendant had nothing to do with the transaction and had no knowledge thereof, and that he had driven him, Anderson, to Esmay's shop purely as an accommodation and upon request. While it is doubtless a suspicious circumstance that defendant drove Anderson to the place where the whiskey was delivered, we concur with the Attorney General in believing that this, without further testimony connecting the defendant with the crime charged, was insufficient to warrant a conviction. The judgment is reversed and the cause remanded for a new trial.
Reversed and Remanded.