
    STATE v. JOE NOVAK AND ANOTHER.
    
    November 28, 1930.
    No. 28,230.
    
      Katzmarek, Petzke & Warber, for appellants.
    
      Neil M. Cronin, City Attorney, and Palmer B. Rasmusson, Assistant City Attorney, for the state.
    
      
       Reported in 233 N. W. 309.
    
   Dibell, J.

The defendants were convicted in the municipal court of Minneapolis of the unlawful transportation of intoxicating liquor. They appeal from the judgment.

In July, 1930, the defendant Buchta was working for one Mike Sheppard, who had a large farm seven miles from Anoka. He had been working there about a week. About five or six o’clock in the morning of July 6, 1930, Sheppard drove him in an auto to the Anoka street car line and left him to wait there for the street car to Minneapolis. A boy of some 16 years old, driving a car towards Minneapolis, came from the direction of Anoka and offered him a ride and he accepted. Some distance farther on the defendant Novak was taken as a passenger. When they got to Minneapolis they were all arrested. The boy afterwards pleaded guilty in juvenile court to transporting liquor. There is no substantial evidence that Novak or Buchta were engaged in the transportation of liquor. None of the evidence points in that direction except a statement by the police officer in rebuttal, which might indicate that one or more of them knew of a still back in the Anoka region but nothing more definite. Novak did not testify. Buchta was a foreigner. He spoke indifferently. He did not understand well what was asked him. There was a lack of evidence, and his conviction should not stand.

The trial court distrusted the testimony of the boy. It thought he was not telling the truth, thoroughly disbelieved him, and suggested and urged that he change his testimony to what the court deemed was the truth. The boy refused. To some extent his testimony was impeached. Though the court justifiably might refuse to believe his testimony, such disbelief did not justify a finding of a fact to the contrary, of which there was not evidence. Moulton v. Moulton, 178 Minn. 568, 227 N. W. 896. There was no substantial evidence justifying a finding of guilty upon the ground that the two defendants did not come into Minneapolis with the boy, as narrated in the first paragraph, nor of their participation in unlawful transportation.

The trial did not furnish a satisfactory hearing.

Judgment reversed.  