
    JOE BARTINO v. STATE.
    No. A-347.
    Opinion Filed May 27, 1910.
    (109 Pac. 80.)
    APPEAL — Absence of Evidence. Where the prosecution fails to offer any testimony tending to prove the offense charged, or whether the evidence tends to prove anything- pertinent to the issue, is a question for the court; and where there is an entire absence of evidence, a conviction will be reversed.
    (Syllabus by the Court.)
    
      Appeal from Pittsburg County Court; B. TP. Higgins, Judge.
    
    Joe Bartino was convicted of violation of prohibition law, and appeals.
    Reversed.
    
      J. 71. Siolper and Robert Tarter, for plaintiff in error.
    
      Fred S. Caldwell, for the State.
   PER CURIAM.

The plaintiff in error was convicted in the county court of Pittsburg county on an information which charged him with “unlawfully having in his possession and under his control certain spirituous liquor, to wit, whisky, with the intent then and there to sell, barter, give away, and otherwise furnish.” The judgment and sentence were entered on July IB', 1909, from which judgment an appeal was taken by filing in this court on October 8, 1909, a petition in error with case-made attached, including proper proof of service of notices of appeal.

Sixteen assignments of error are alleged in the petition, but it is only necessary to consider the fifteenth, that “the verdict of the jury is contrary to the evidence.” Counsel for the state concedes that the evidence is insufficient to support the verdict and judgment. An examination of the case-made shows that no evidence is adduced proving or tending to prove that the defendant has committed any offense. It is a cardinal principal in o-ur jurisprudence that the jury is the ultimate tribunal for the investigation and determination of questions of fact. Where, however, the prosecution fails to offer any testimony tending to proye the offense charged, or whether the evidence offered tends- to prove anything pertinent to the issue is a question for the court, and where there is an entire absence of evidence to support the charge, the court should dismiss the prosecution.

There being no evidence to prove, or tending to prove, the defendant had committed any offense, the case is reversed and remanded, with direction to the lower court to dismiss the prosecution.  