
    16340.
    Popham v. The State.
    Decided April 21, 1925.
    Indictment for possessing liquor; from Floyd superior court—' Judge Wright. February 28,' 1925.
    Popham was convicted under an indictment which charged him with having five pints of intoxicating liquor in his possession, custody, and control, in his garage, on October 4, 1924. It was testified, that at the time and place alleged five pints of liquor were found in the hood of “an old abandoned automobile,” but that the' defendant was not there;.that the garage was a public garage run' by the defendant, in a thickly settled neighborhood, and on “one. of the most used streets in the county,” and was always open and accessible to anybody; that when the liquor was found a boy' named Peed was there, who said he was staying there, and who' must have been sixteen or eighteen years old; and that nineteen, empty bottles and five gallon cans were also found there. A witness testified: “Those cans had had whisky in them; I would not say for sure, but I smelled of the funnel.” It was also testified that a short time before the officers discovered the liquor a man was seen carrying into the garage a package in a paper sack, and that the defendant was not there; that he had left there early in the morning or in the night preceding the afternoon in which the liquor was found. The defendant, in his statement at the trial, said that in the afternoon preceding the day mentioned by the witnesses he went to Alabama, leaving at the garage the boy named' Reed, and cautioned the boy not to allow anybody to be around there to create any disturbance; that he did not know the whisky was there, and knew nothing about it, and was forty miles away when it was found.
   Luke, J.

Tlie evidence in this ease did not authorize the conviction, and for this reason the court erred in overruling the motion for a new trial.

Judgment reversed.

Broyles, G. J., and Bloodworih, J., concur.

Porter & Mebane, for plaintiff in error.

James P. Kelly, solicitor-general, M. Neil Andrews, contra.  