
    15996.
    Manning v. The State.
    Transporting intoxicating liquor; from Murray superior court-judge Tarver. September 27, 1924.
    IF. E. & IF. G. Mann, for plaintiff in error.
    
      J. M. Lang, solicitor-general, contra.
   Blood worth, J.

Where two persons were jointly indicted for transporting alcoholic liquor, and no other person was named in the indictment, and it was not alleged therein that these two and others engaged in the unlawful act, it was error, requiring- the grant of a new trial, for the judge to charge that if a named third person, “or other persons known or unknown, according to the evidence, transported whisky, and that this defendant was present aiding and abetting such other person or persons in the commission of their unlawful act, and participating in their criminal intent, the defendant is likewise guilty.” This instruction was error because under it the jury were authorized to return a verdict against the accused even though there was no evidence to show that he, in conjunction with the person jointly indicted with him, transported intoxicating liquor. Hubbard v. State, 123 Ga. 17 (51 S. E. 11).

As, under this ruling, a new trial is required, it is unnecessary to discuss other alleged errors, since they are of such a character that they will not likely recur on another trial.

Judgment reversed.

Luke, J., concurs. Broyles, G. J., dAssents.

Broyles, C. J.,

dissenting. In the light of the facts of the case and of the entire charge of the court, I do not think that the instruction complained of requires another hearing of the case. The evidence related to one transaction, and it was shown that this defendant and the other person indicted with him were present on that occasion, and that both of them were aiding in the commission o£ a misdemeanor. This case is easily distinguishable from that of Hubbard v. State, 123 Ga. 17 (51 S. E. 11). In. that erase the defendant was indicted with several other persons for gaming with cards, and there was no evidence that he played cards with any of the other persons named in the indictment.  