1. There being no evidence in this ease to establish the fact (necessary for a legal conviction) that it was the defendant who had been on a public highway in an intoxicated condition “manifested by boisterousriess, indecent acting,” etc., it was. error for the trial judge to refuse to grant a new trial.
2. A court’s refusal to direct a verdict is never a ground for the assignment of error. The trial judge may, in a criminal case, direct a verdict whenever, after all the State’s evidence is in, a verdict of acquittal is the only legal finding possible; but while this is true, his refusal to direct a verdict of “not guilty” is not a proper ground for an assignment of error in the reviewing court. The only question which this court can consider is whether, upon an examination of the evidence as a whole, including the statement of the accused, there was any evidence to sustain the verdict of guilty. Nalley v. State, 11 Ga. App. 15 (74 S. E. 567); Harvey v. State, 8 Ga. App. 660 (70 S. E. 141).
Judgment reversed.