
    14304.
    FOSKEY v. THE STATE.
    A conviction of being drunk on a public highway was not authorized in this ease.
    Decided April 10, 1923.
    Accusation of drunkenness on highway; from city court of Wrightsville — Judge Move. December 23, 1922.
    From the evidence it appears that the defendant was one of a party of three who went in a buggy on the public highway to the house of one Hall. They were talking loud, and two of them were cursing. One of them was drunk or sick and unable to walk, and fell and vomited on getting out' of the buggy at Hall’s house. This one, according to the testimony of Hall, was not the defendant. Hall testified that he smelled whisky on the defendant, but that the defendant did not appear to be drunk, and there was no misconduct on his part at Hall’s house. Another witness testified that he saw the defendant and the others in the buggy on the public road, and “ took defendant to be drinking, and heard him say to one of the other parties in the buggy to ‘go to hell;’ ” that the defendant was sitting in the middle, holding to the dashboard, and this was the main reason that he. thought that the defendant was drunk. The other witnesses who saw the persons in the buggy testified that they could not say that the defendant was drunk or misconducted himself. In his statement at the trial he denied that he was drunk or drinking, or cursing or talking loud.
    
      B. B. Blount, for plaintiff in error.
   Broyles, C. J.

The defendant was charged with being drunk upon a public highway. The evidence did not authorize his conviction, and the court erred in overruling his motion for a new trial. Judgment reversed.

Lulce and Bloodworth, JJ., concur.  