
    JOE HODGE v. STATE.
    No. A-5650.
    Opinion Filed Jan. 29, 1927.
    
    (252 Pac. 854.)
    
      C. H. Parrick, for plaintiff in error.
    George F. Short, Atty. Gen., for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called defendant, was convicted in the district court of Oklahoma county on a charge of drinking intoxicants in a public place, and was sentenced to serve a term of 30 days in the county jail and to pay a fine of $100. Defendant was charged in the justice court of Oklahoma county under the provisions of section 7028, Comp. Stat. 1921, with drinking intoxicating liquor in a public place. He was convicted, and appealed to the district court, and was there convicted, and has prosecuted an appeal to this court.

The complaint is seriously defective, but as it was not challenged until the beginning of the trial in the district court, and then by objection to the introduction of evidence, every intendment and inference will be indulged in to sustain it. It is sufficient as against objection interposed. The defendant was at Elmwood Park, something of a dance resort and amusement place just south of Oklahoma City, with some other persons. With another individual, he went into the toilet room, and there the other individual took a drink out of a bottle and handed the bottle to defendant, but just at this time a special constable employed at the park came upon the scene and seized the bottle, and in the scuffle following the contents were poured out. There is no positive evidence that defendant ever drank out of the bottle. He created a disturbance, and is deserving of punishment, but the evidence does not sustain the charge of drinking intoxicating liquor in a public place.

The case is reversed and remanded, with instructions to dismiss.  