
    2692.
    Fain v. City of Atlanta.
    Decided July 19, 1910.
    Certiorari; from Fulton superior court — Judge Pendleton. May 16, 1910.
    
      Moore & Branch, for plaintiff in error.
    
      J. L. Mayson, IF. I). Bilis lx., contra.
   Russell, J.

The evidence, being- wholly circumstantial and not inconsistent with the defendant’s innocence, was insufficient to authorize the defendant’s conviction, and for that reason the certiorari should have been sustained, and the judgment of the recorder’s court set aside as contrary to law. Mere possession of three gallons of corn whisky, in half-pint flasks kept in the owner’s dwelling, without any evidence of a sale or of an attempted sale on the part of the owner, is not such a circumstance as will authorize the conclusion, based upon moral and legal certainty, that such liquor was bept for the purpose of sale. Nor does the fact that the conduct of two persons engaged by the accused to carry this liquor from his dwelling to another dwelling for safe-keeping- during the owner’s absence was suspicious (which conduct was not in the presence of the accused) affect the issue as to the guilt or innocence of the accused, where there is nothing in the evidence to support the inference of a sale.

Judgment reversed.  