
    1080.
    DAVIS v. THE STATE.
    Prom a defendant caught in an apparently guilty situation, an unreasonable explanation is worse than no explanation at all.
    Accusation of selling liquor, from city court of Vienna — Judge Hendersón. February 10, 1908. • •
    Submitted March 31,
    Decided April 22, 1908.
    
      
      Busbee £ Busbee, for plaintiff in error.
    Waifs Powell, solicitor, contra.
   Powell, J.

One night last August two gentlemen, while standing in the concealment' of a warehouse door in the city of Vienna, saw two negroes, one of them the defendant, the other Perry Street, go behind the warehouse and sit down on a platform. The defendant had a quart bottle and a grip. He handed the bottle to Street, who proceeded first to take a drink and then to reach his hand into his pocket and to give the defendant therefrom something, which the gentlemen in watching could not' swear was money, but which one of them testified “rattled like money.” The defendant was immediately arrested for violating the prohibition law. On his person were found a small drinking glass and a corkscrew, in the grip another bottle of whisky and a shoe-buttoner. The defendant, while on his way to jail, admitted that what Street had given him was a dime. In his statement before the jury the defendant said, that he had started to the railroad station with a view of going to Montezuma on a visit to his father and mother, and was carrying the whisky to them; that he met his nephew by marriage, Perry Street, who asked him if he had any whisky, and, the reply being in the affirmative, a drink was requested. The defendant expressed a willingness to comply with the request, on condition that Street would leave the sidewalk and go behind the warehouse. There the drink was tendered and taken. The defendant then recalled that Street owed him a dime for a shirt, and asked for payment. Street did not have a dime, but paid him a nickel. Street was not called as a witness. Why the defendant should have started off from a “dry” town, on a visit to his parents, carrying only two bottles of whisky, a drinking glass, a corkscrew, and a shoe-buttoner, why he sought such seclusion in the nighttime, to give his kinsman a harmless drink, why he should have remembered to dun him for the price of a shirt while he was still smacking his lips over the exhilarating draught, why shirts should be so cheap in Vienna, why Street was not called to corroborate his unfortunate benefactor’s statement, were questions which must have weighed heavily on the minds of the twelve intelligent men who tried the case. All these things may have been the result of coincidence; the jury did not think so; nor do we.

Judgment affirmed.  