
    NORMAN LOLLAR v. STATE.
    No. A-6890.
    Opinion Filed Nov. 16, 1929.
    (282 Pac. 476.)
    
      H. A. Johnson, for plaintiff in error.
    The Attorney General, for the State.
   PER CURIAM.

The plaintiff in error, hereinafter called defendant, was convicted in the county court of Noble county on a charge of having possession of one-half pint of whisky with the unlawful intent to barter, sell, give away, or otherwise furnish the same, and his punishment fixed at a fine of $100 and confinement in the county jail for a period of 30 days.

The evidence discloses that the chief of police of the city of Perry, with one Donald Taylor, drove up to the American Hotel in a car; that the defendant was sitting on a bench in front of the rooming house, and when the officer stopped his car the defendant started to run; that after running 40 or 50 feet from the officer he broke the half-pint bottle by throwing it on the pavement. Both witnesses smelled of the wet spot caused by the breaking of the bottle on the pavement and testified that it was whisky.

The proof of the possession of a half-pint of whisky is insufficient to raise the presumption of intent to barter, sell, or give away the same. The state failed utterly to show any intent to sell or give away any of the liquor possessed. The proper charge in this case should have been transportation of intoxicating liquor.

The evidence is insufficient to support the verdict of the jury. The case is reversed.  