
    
      19472.
    
    TUTT v. THE STATE.
    Decided April 9, 1929.
    
      Hugh H. Combs, for plaintiff in error.
    
      M. L. Felts, solicitor-general, contra.
   Luke, J.

The defendant was convicted of possessing intoxicating liquor. The contention of the State was that he was driving a car, and when the officers got after him he broke a bottle of whisky in the ear. The State introduced only one witness, and he swore in part: “1 did not see him break the whisky. I did not see him in possession of any whisky. . . All I found was the smell of whisky in the car and the broken bottle. . . There was no whisky dripping from the car that I saw. . . I searched the defendant twice. The first time I searched him there was another negro with him. We searched the car there and there was not any whisky. We searched him again in possibly two hours.” The defendant in his statement said that there was another man with him in the car, and that “when he seen another car coming down the road, he broke the bottle and jumped out. I didn’t have nothing to do with the bottle the fellow broke.” Under the defendant’s statement another man had the whisky and broke it. Under the State’s evidence anybody could have broken it, any time within two hours prior to the arrest, and in or out of the county. -The evidence does not exclude every reasonable hypothesis save that of the guilt of the accused; and the court erred in overruling the motion for a new trial.

Judgment reversed.

Broyles, O. and Bloodworik, J., concur.  