
    13012.
    Mathis v. The State.
    Decided January 17, 1922.
    Indictment for possessing liquor; from Wilkes superior court — Judge Shurley. September 30, 1921.
    The only witness for the State was a deputy sheriff, who testified: that a jug of whisky was found near the side of a road, and he hid in bushes near it to see who would come for the jug, and saw the defendant drive past in a buggy and go a short distance down the road, where there was a branch, and return, stop the buggy, get out of it, and climb a fence, with a sack, and walk along the fence, stop, reach over the fence, and begin pulling vines from over the jug, which was on the same side of the fence as the road, but that on seeing the witness he started off and was halted by the witness, and said that he came out there to relieve himself, and knew nothing about the whisky; that he had been to Mr. Barnett’s place, near there, to get cottonseed, but Mr. Barnett was not at home. The witness did not see him touch the jug. The defendant, in his statement at the trial, said that he climbed over the fence to get out of sight of the road and, relieve himself, and took the sack over the fence to put it under his knee, which was tender and sensitive where his leg had been cut off, and that on seeing the deputy sheriff he started off because the deputy sheriff had a pistol drawn on him and it frightened him; that he knew nothing about the whisky, and was not within eight feet of where the deputy sheriff picked it up, and that the reason for turning back after he had passed that place was that he went to the branch to let the horse get water, and was returning to Mr. Barnett’s place, where he had gone to get cottonseed in the sack; that he had been told that Mr. Barnett had “ only stepped off a little ways.”
   Broyles, C. J.

A conviction of having possession of intoxicating liquor was not authorized by the evidence, and the court erred in overruling the motion for a new trial.

Judgment reversed.

Luke and Bloodworth, JJ., concur.

Hugh E. Combs, F. H. Colley, for plaintiff in error.

M. L. Felts, solicitor-general, contra.  