
    STATE v. ALEXANDER 
    
    (No. 1386;
    May 17, 1927;
    256 P. 76.)
    Intoxicating Liquors—Evidence op Sale—Witnesses—Repudiation op Former Statement.
    1. Evidence held insufficient to support conviction for possessing and selling intoxicating liquor, where defendant took another, who sold whisky, to place where it was-delivered.
    2. In prosecution for possessing and selling liquor, statements. of witness in statement previously signed that defendant sold him whisky was not affirmative testimony, where-such witness substantially repudiated former statement on witness st'and.
    Appeal from District Court, Converse County; Cyrus 0.. Brown, Judge.
    J. D. Alexander was convicted of possession and sale of' intoxicating liquor, and be appeals.
    
      Joseph Garst, for appellant.
    Tbe elements of a sale of intoxicating liquor are defined by 33 C. J. 764; tbe burden was on tbe State to establish tbe defendant’s connection with tbe offense charged; Youngblood v. State, 240 P. 140; 33 C. J. 777; Grantello v. U. S., 3 Fed. (2nd) 117. Tbe mere presence of one, at tbe time and place of crime, does not make him a principal in tbe second degree, where be does not aid or abet; 16 C. J. 115, 121. Knowledge on tbe part of tbe accused is necessary, but it cannot be inferred from suspicious circumstances; Everman v. Commonwealth, 248 S. W. 485; Mob-ley v. Commonwealth, 227 S. W. 584. Tbe corpus delicti is tbe unlawful sale rather that tbe liquor; State v. Ferre-bee, 105 S. E. 345. There must be a transmutation of property, from one to another, in consideration of a price ; 33 C. J. 766; 23 R. C. L. 1186. Tbe possession forbidden must be more than a temporary possession; it bas been frequently defined by the courts; 31 Cyc. 924; State v. Shelton, 248 S. W. 980; Ring v. State, 242 S. W. 561; Ward v. State, 243 S. W. 857. There is no proof that appellant knew that Anderson had the liquor in his possession; an illegal sale cannot be based on a mere suspicion; Benoit v. St. Louis, 60 So. 137.
    W. 0. Wilson, Attorney General, and James A. Greenwood, Deputy Attorney General, for respondent. (2). J. Howell former Attorney General, and John C. Pickett, former Assistant Attorney General, on the briefs.)
    Defendant was tried upon a charge for selling liquor as identified by the witness, Esmay; State v. Tobin, 31 Wyo. 355. The witness, Esmay, testified that the defendant had nothing to do with the sale, as far as he knew; knowledge and intent are indispensable elements in such cases; 33 C. J. 617; we think the evidence, as shown in this record, is insufficient to sustain a conviction.
    
      
      See Headnotes: (1,2) 33 CJ p. 761 n. 53; p. 764 n. 1; 40 Oye p. 2764 n. 16.
    
   Per Curiam.

The defendant was charged with the possession and sale of intoxicating liquor in violation of law. From a conviction by a jury, and a judgment thereon, he has appealed.

The Attorney General has substantially confessed error herein. Hje states his belief in his brief that the evidence in the ease was insufficient to warrant a conviction. It was shown that the witness Esmay, in the evening of June 2, 1925, at a dance, asked one Roy Anderson if he, Anderson, could get him some whiskey. Anderson answered in the affirmative, and it was agreed between them, and them alone, that Anderson should take the whiskey to Esmay’s shop. Anderson brought the whiskey as he had agreed, and Esmay paid him for it. No connection of the defendant with this transaction, upon which the charge herein is based, was shown, except that it appears that defendant drove Anderson to Esmay’s shop in his automobile, and the whiskey was delivered to Esmay by Anderson in defendant’s presence, outside of the shop. The state sought to impeach Esmay, its own and substantially only witness, by having him testify that he had previously signed a statement to the effect that Anderson sold him part and that defendant sold him another part of the whiskey. But the witness substantially repudiated his former statement, and that statement did not subserve the purpose of affirmative testimony in this case. Crago v. State, 28 Wyo. 215, 202 P. 1099. Anderson testified that defendant had nothing to do with the transaction and had no knowledge thereof, and that he had driven him, Anderson, to Esmay’s shop purely as an accommodation and upon request. While it is doubtless a suspicious circumstance that defendant drove Anderson to the place where the whiskey was delivered, we concur with the Attorney General in believing that this, without further testimony connecting the defendant with the crime charged, was insufficient to warrant a conviction. The judgment is reversed and the cause remanded for a new trial.

Reversed and Remanded.  