
    11365.
    Allen v. The State.
    Decided May 12, 1920.
    Accusation of possession of liquor; from city court of Floyd county—- Judge Nunnally. February 6, 1920.
    Allen was charged with having had in his possession, custody, and control intoxicating liquor. M. D. Martin testified, that he saw near Lindale men and boys, “ all during the day,” walking and in automobiles, going to and from a place up a hill where whisky was afterwards found by him, and bringing away something with the sun shining on it that had the appearance of being jugs and bottles, and he notified the sheriff, and he and the sheriff took a trail which Ted up the hill, and when they got up there they saw the defendant alone, sitting on or in reach of a keg containing between 10 and 15 gallons of whisky, 35 or 40 yards from the road, and where it could not be seen from the road; the defendant was “ leaning sorter up against the keg,” and a quart cup was sitting there; he was doing nothing, and he said he had come up there to get-some whisky and was waiting for the man who owned it to come back; that the whisky was not his whisky. The witness had seen the defendant and another man leave the main public road and go up the hill to or towards this place. The sheriff testified, that when he and Martin reached there the defendant was sitting at the end of the keg, and could have laid his hand on it; that the defendant said he was waiting on the man that had the whisky, and had come there to get a quart of it, that it was not his whisky, but belonged to Will West; he was searched and no whisky or bottle was found on his person; he had a nickel in money. The witness further testified that not more than five or ten minutes before he got to that place he saw the defendant and Will West going up there together, and that Will West came down the hill by himself stopped with some boys at an automobile, and remained there 'while the witness was going up the hill. The defendant, in his statement at the trial, said that some boys told him and Will West that there was some whisky “ over there,” and Will said to him “ Let’s go and get some of it,” and he gave to West what money he had, and “he was going to get the whisky” when they got there, that they heard a car coming, and Will remained to see who was in the car and told him to go on up there; and when he got there he saw the keg and sat down, waiting to get some of it.
   Broyles, C. J.

Tlie evidence, as disclosed by the record, was insufficient ■to authorize the defendant's conviction, and the court erred in overruling the motion for a new trial.

Judgment reversed.

Luke and Bloodworth, JJ., concur.

W. B. Mebane, for plaintiff in error.

J. F. Kelly, solicitor, contra.  