
    11597.
    Davidson v. The State.
    Decided July 28, 1920.
    Indictment for misdemeanor; from Harris superior court — Judge Howard. May 3, 1920.
    The indictment charged Huse Davidson with having possession of intoxicating liquor. On the trial the sheriff (the sole witness) testified that on October 9, 1919, he found a 5-gallon jug, with about half a teacupful of whisky in it, behind a log, about 20 or 25 feet from the defendant’s house and in. his yard. The alleged newly discovered evidence was contained in an affidavit of John Billingslea, in which he said: “On the 8th day of October, 1919, deponent went with one Bobbie Lovelace, colored, to the residence of Huse Davidson. The said Bobbie Lovelace had with him a 5-gallon jug which he placed behind a log near the well at Huse Davidson’s house. The jug was empty or practically empty and contained no stopper.”
    
      J. R. Lunsford, J. B. Burnside, for plaintiff in error.
    
      C. F. McLaughlin, solicitor-general, contra.
   Broyles, C. J.

The alleged, newly discovered evidence is neither cumulative nor impeaching in its character, and would probably cause a different verdict to be returned upon another trial. The court, therefore, erred in overruling the defendant’s motion for a new trial.

Judgment reversed.

Luke and Bloodworth, JJ., concur.  