
    No. 11,472.
    Bunker v. The People.
    Decided February 15, 1926.
    Plaintiff in error was convicted of possession of a still.
    
      Reversed.
    
    
      On Application for Supersedeas.
    
    1. Criminal Law — Still—Evidence. Iu a prosecution for owning, operating, and knowingly having in possession a still, the evidence is reviewed and held insufficient to sustain a conviction.
    
      Error to the District Court of Saguache County, Hon. Jesse C. Wiley, Judge.
    
    Mr. James P. Yeerkamp, for plaintiff in error.
    Mr. William L. Boatright, Attorney General, Mr. Louis W. Burford, Assistant, for the people.
    
      Department Two.
    
   Mr. Justice Denison

delivered the opinion of the court.

Ovid Bunker was convicted, under chapter 80, S. L. 1925, upon the charge that he did “own, operate and knowingly have in his possession a certain still.” The information joined John Kolkman, Ed. Bowman and Boyd Bunker. Kolkman was Ovid’s father-in-law, and was never apprehended. Bowman and Boyd, who was Ovid’s younger brother, were acquitted. The only point for reversal is that the evidence was insufficient. The point is well taken.

August 29, 1925, at 2 a. m., a still, many barrels of mash, and about ninety gallons of whisky and a Ford truck were seized on a ranch leased by Kolkman. Bowman and Boyd were taken asleep on the premises. The still, mash and whisky were found in a large cellar where were coal and cinders and ample evidence of use. The only evidence against Ovid is that on August 25th, he was seen driving the said Ford truck through the town of Moffat, preceded by Kolkman in a sedan with two women. A witness followed the truck straight on south eight miles, apparently by the tracks. They were also seen on the road to Hooper from Moffat, further down, about 15 miles from the still. Ovid bought coal at Hooper, 16,500 pounds there from June 22nd to August 25th. He did not testify. His wife and two brothers say he brought the coal to his house about 9 p. m., August 25th. One Campbell says he watched the road and no one passed toward Ovid’s house before 12 p: m. The purchase of the coal is explained by the claim that it was needed for a drill for drilling wells, but Cartwright, the owner of the drill, says no coal was used between July 22nd, and August 28th; that he bargained with defendant to furnish coal for the drill, but he furnished only about 2,000 pounds. It was also shown that on or about August 25th, Ovid took Boyd in a Ford to the ranch where the still was, left him there and went away without getting out of the machine; also that the odor from the still was perceptible at a considerable distance from it. The accused was apparently convicted as an accessory, but there is no evidence against him except as above and it does not appear that he even knew that the still was there. We cannot let such a conviction stand.

Judgment reversed and new trial granted.

Mr. Chiee Justice Allen and Mr. Justice Whiteord concur.  