
    18078.
    Summerville v. The State.
    Criminal Law, 16 C. J. p. 1179, n. 67.
    Decided June 14, 1927.
    Indictment for violation of prohibition law; from Haralson superior court—Judge Edwards. March 35, 1937.
    Under an indictment charging sale and possession of intoxicating liquor, Jodie Summerville was found guilty jointly with Rich Clark and Homer Shedd; a joint motion for a new trial was overruled, and Summerville excepted.
    In an automobile, which Rich Clark said was his car and which he was driving, with his wife seated beside him, the sheriff, according to the testimony, found an uncovered jug of whisky about the center of the car and in front of the back seat, where Summer-ville and Shedd were sitting. The sheriff smelt whisky on Clark but not on the other defendants. Clark said he would like for the sheriff to take him right on to the 'chain-gang, that' he did not want to face Judge Edwards; and he asked the sheriff to shoot him; the other defendants said that they did not have anything to do with it. The defendants testified for each other and each made an unsworn statement in his own behalf. Clark testified: that the whisky belonged to Wright Parker and that Summerville and Shedd had no interest in it and nothing to do with it; that Wright Parker, Savage Parker, and another person got the jug of whisky and a can of whisky and put the jug and the can in the ear when it stopped on account of a puncture, on the return from a trip to Alabama; that he (Clark) took a drink, when it was offered to him, but told them to throw the whisky off the car, that it would get him in trouble; that later the can was taken out when these men left the car, and he thought the jug was taken out, until the sheriff stopped the car; that “Jodie got in the back seat after these other fellows got out.” Summerville stated that he saw the jug and the can brought into the car and heard them say it was whisky, and he was offered a drink, but did not take it; that he had never been caught but one time, when he had six gallons; and that he did not pay any attention about the jug being there after “these boys” got out of the car and he got in the back seat.
   Bboyles, C. J.

The evidence adduced upon the trial, tending to connect the accused with the offense charged, was wholly circumstantial, and was not sufficient to exclude every reasonable hypothesis save that of his guilt. It follows that the court erred in refusing to grant a new trial. Judgment reversed.

Luke and Bloodtvorlh, JJ., eoneur.

E. 8. Griffith, for plaintiff in error.

S. II7. Ragsdale, solicitor-general, contra.  