
    14579.
    CREECH v. THE STATE.
    A conviction of possessing intoxicating liquor was not authorized by the evidence in this ease. (Bkoyles, P. J., dissents.)
    Decided July 11, 1923.
    Accusation of possession of liquor; from city court of Metter — Judge Lanier. April 18, 1923.
    Sid Creech was convicted on testimony as to the finding of three bottles of whisky in Johnson Bird’s buggy, to which the defendant’s mule was attached, and in which Jasper Bird and the defendant had come to town. They had arrived in town about sundown on Saturday, and hitched the mule to a post, and left the mule and buggy standing there, and in their absence the town marshal searched the buggy and found two bottles of “moonshine” whisky under the seat in a “little box concern,” and then sent for the sheriff, who came to the buggy and found a third bottle. This bottle, the marshal testified, was found “ in the foot,” but he later testified that he did not know whether the sheriff found it in the front or the back of the buggy. The marshal found the mule and the buggy in a dark part of an alley back of a store. The sheriff took charge of the mule and buggy and drove them off. The marshal testified that when he was going to the buggy before finding the liquor he met the defendant at a hardware store, and that after he (the marshal) had been at the buggy about a half or three quarters of an hour Johnson Creech came there for the mule and buggy and said that Sid was to give him fifty cents for getting them. The witness said that before Johnson Creech came, a little boy came there and, on seeing him, started to run, and that the boy said his name was Bird. The next time that the witness saw the defendant after seeing him at the hardware store at the time mentioned above, was Monday morning. The sheriff testified that the defendant came to him and got the mule and buggy, giving bond for them, and told him that the mule was his and that the buggy belonged to Johnson Bird.
    Jasper Bird testified, that on the day mentioned above he went to the defendant’s house and the defendant was preparing to ride a mule to town, and he (the witness) proposed that they drive the mule to town in the buggy mentioned, which belonged to the father of the witness; that they took with them a dozen eggs which the defendant’s wife sent; that they came on to town together and hitched the mule to a light post at A. J. Bird’s stables about sundown, and “went on down the street;” that if there had been any liquor in the buggy he would have seen it, but he did not see any; that he was sure no liquor was in the buggy when they left it; that he was with the defendant all the time while they were in the town and did not see him have any liquor; that it was, about eight or nine o’clock that night when they went to where the buggy had been left by them, that it had been taken off, and that the defendant found it at the jail Monday morning; that when they went to town Saturdaj1, the eggs were in a paper sack in the back of the buggy, and that two or three of the planks in the foot of the buggy had been tom out. Other witnesses testified that when the defendant and Jasper Bird were hitching the mule the paper sack was in the back of the buggy, but that they did not see any liquor. It was testified that the paper sack looked as if it might contain a dozen eggs, and that it was about as big as two fists, and not large enough to contain one of the bottles of liquor referred to. Johnson Creech testified that he saw the defendant at a store that night, and the defendant hired him to hunt the buggy, and did not go with him. The marshal and the sheriff testified that they did not find any eggs in the buggy. The defendant, in his statement at the trial, said that he “ never had any liquor at all that night or evening,” and had never seen “this whisky.”
    
      Kirlcland & Kirkland, 'for plaintiff in error.
    
      G. W. Turner, solicitor, contra.
   Bloodworti-i, J.

“The defendant was convicted on circumstantial evidence. The facts proved did not exclude every other reasonable 'hypothesis save that of the guilt of the accused, and the judge erred in overruling the motion for a new trial.” Harris v. State, 28 Ga. App. 24-1 (111 S. E. 214). Penal Code, § 1010.

Judgment reversed.

Luke, J., concurs. Broyles, G. J., dissents.

Broyles, C. J.,

dissenting. In my opinion the evidence was sufficient to exclude every reasonable hypothesis save that of the defendant’s guilt, and the overruling of the motion for a new trial was not error.  