
    27844.
    SMITH et al. v. THE STATE.
    Decided March 9, 1940.
    
      P. M. Anderson, 8. T. Brewton, for plaintiffs in error.
    
      Henry H. Hurrence, solicitor, contra.
   Broyles, C. J.

Earnest Smith, Warnell Smith, and H. Porter were tried together and were convicted on counts 1 .and 2 of an accusation which respectively charged them with the offenses of assault and battery and of appearing in an intoxicated condition on a certain designated highway. Their motion for new trial was overruled, and that judgment was assigned as error. The evidence was insufficient to show beyond a reasonable doubt that any one of the defendants was intoxicáted on the occasion in question; and therefore the refusal to grant a new trial was error. Furthermore, the evidence that the defendants were the persons who assaulted and beat the two persons as 'charged in the accusation was very unsatisfactory, especially in view of the alibi established by the defendants. The witnesses for the State testified that the battery was committed at night, and that they had never before seen the defendants. In one breath they said that the defendants were the persons who committed the battery, and in the next breath they stated that they “looked like them and were about the same size and color.” Justice and equity require another hearing of the case.

Judgment reversed.

MacIntyre and Guerry, JJ., concur.  