
    (No. 5021.
    October 22, 1927.)
    STATE, Respondent, v. JOHN APPLEGATE, Appellant.
    [260 Pac. 167.]
    Criminal Law — Sale op Intoxicating Liquor — Rule on Conflicting Evidence.
    Jury’s finding of sale of intoxicating liquor, being on conflicting evidence, will not be disturbed on appeal.
    Publisher’s Note.
    See Criminal Law, 17 C. J., see. 3594, p. 264, n. 89.
    APPEAL from the District Court of the Seventh Judicial District, for Canyon County. Hon. Ed. L. Bryan, Judge.
    John Applegate was convicted of the sale of intoxicating liquor, and he appeals.
    
      Affirmed.
    
    G. W. Lamson, for Appellant.
    The evidence was sufficient to create a suspicion only and was purely circumstantial and insufficient beyond a reasonable doubt.
    “The circumstances must be consistent with the guilt of the defendant and inconsistent with his innocence.” (State v. Marcoe, 33 Ida. 284, 193 Pac. 80; Broshears v. State, 17 Old. Cr. 192, 187 Pac. 254; State v. Dawn, 42 Ida. 210, 245 Pac. 74; State v. Lewis, 70 Mont. 61, 223 Pae. 915.)
    If the evidence is consistent with both innocence and guilt then the doubt should be resolved in favor of the defendant.
    Prank L. Stephan, Attorney General, and John W. Cramer and Leon M. Fisk, Assistant Attorneys General, for Respondent.
    The evidence of the sale of intoxicating liquor was sufficient. (State v. McLaughlin, 42 Ida. 219, 245 Pae. 77; Albert v. United States, 281 Fed. 511; Keen v. United States, 11 Fed. (2d) 260.)
    
      Where circumstantial evidence is sufficient to produce a belief of appellant’s guilt beyond a reasonable doubt, a conviction thereon will be sustained. (State v. McLennan, 40 Ida. 286, 231 Pac. 718.)
    The conclusions of guilt must not necessarily follow from the circumstances in proof, but may be obtained therefrom by probable deductions. (State v. Dawn,- 42 Ida. 210, 245 Pac. 74.)
    Where the evidence is conflicting the court will not disturb the verdict of the jury. (State v. Brassfield, 40 Ida. 203, 232 Pac. 1; State v. Shepard, 39 Ida. 666, 229 Pac. 87; State v. Bouchwrd, 27 Ida. 500, 149 Pac. 464.)
   FEATHERSTONE, Commissioner.

The appellant, John Applegate, was convicted in the district court of Canyon county on a charge of selling intoxicating liquor, and was sentenced to serve four months in jail and pay a fine of $300. The liquor alleged to have been sold consisted of a number of bottles of home-made beer. The record shows that on the trial the defendant admitted the possession of, but denied any sale of, liquor.

The only error assigned by appellant is that the evidence is insufficient to support the verdict and judgment.

We have carefully examined the record, and find no reversible error. The evidence as to the sale is conflicting, and the jury having found that a sale of intoxicating liquor was made by the defendant Applegate, following the rule laid down by this court in the case of State v. Brassfield, 40 Ida. 203, 232 Pac. 1, State v. Shepard, 39 Ida. 666, 229 Pac. 87, and State v. Bouchard, 27 Ida. 500, 149 Pac. 464, that where the evidence is conflicting, the court will not disturb the verdict of the jury, we recommend that the judgment of the lower court be affirmed.

Babcock and Adair, CC., concur.

PER CURIAM.

The foregoing is approved as the opinion of the court and the judgment is affirmed.  