
    COOK et al. v. THE STATE.
    Submitted October 8,
    Decided October 19, 1896.
    Indictment for misdemeanor. Before Judge Milner. Bartow superior court. July team, 1896.
    George Cook and Dick Cook were indicted for the unlawful sale of liquors in Bartow county. They were found .guilty, and their motion for a new trial, made upon the general grounds alone, being overruled, they excepted.
    The evidence for the State in brief was: On December 24, 1895, one Chapman saw the two defendants with an old man and a young man passing his house about sundown. Stansell was not in the wagon. He came to* the house where Chapman was, and Chapman went back to the wagon with him, and he offered Chapman a dram which Chapman took. Ho money was passed, and nothing was said about paying for the whisky. On the same day Tom Cowart saw George Cook near Cass station, who offered to sell him some tobacco* which he had under his aim; and after talking with Cowart about the tobacco*, Cook said if Cowart saw 'anybody who wanted anything he thought he could get it. Cowart saw J. C. Waldrup in a buggy with George Cook on the same day at old man Denson’s in Bar-tow county, and they got out of the buggy and "Waldrap took a jug out o*f the buggy and went towards the wagon which was in Andrew Denson’s yard; but George Cook did not go in that direction but went to* the house, and Dick Cook was not present. Cowart never saw either of defondants sell any whisky and has never seen or was present when any was sold. About eight o’clock in the morning of the same day, J. 0. Waldrup, driving in his buggy towards Cass^ulle, met George Cook on the road, and Oook had some tobacco twists and offered to sell some to Waldrup. Waldrup told Mm he was looking for some whisky, and Oook said he knew a man who had some and would tell Waldrup Where he was, 'and indicated where the man was. Waldrup asked him if he would get in the buggy and drive with Waldrup, and Cook did so. It was near the Denson house, and Obok pointed at an old looking man and said he thought this man would let Waldrup have what he wanted. Waldrup went with the man to- the wagon and Oook went the other way into- the 'house. Waldrup bought a gallon ■of -apple brandy from the old man, and paid him for it. •George Oook had nothing to do- with this sale, 'except as •stated, and Dick Oook was not there. Waldrup never 'bought any whisky from either of them, and never saw them sell any. During the night of December 23 d, George C'o-ok and Stansell came to the house of Denson, George’s father-in-law. George fold Denson that he and ■his -brother had come down to sell tobacco and had a lot -of it in the wagon which was in the yard. There was no whisky in it that Dens’on saw. Denson left home about ■eight -o’clock on the 24th, and the wagon was there- then; came back -about three, and it was gone. Ile-nry Halcomb ■was at Denson’s house when George and Stansell came, and .got a dram of whisky from George. George had a pint bottle about half full in his pocket, and gave Dens'on some before breakfast. Denson never saw either -of defendants sell ■whisky. One Wriggins lives about three- miles from Oass■ville, -and on December 24th got s'ome whisky from an old man -out in the Mack Johnson field, 'and saw Plunket Hay-:good get some and pay for it, Tom Cowart told Wriggins where the whisky was and how h-e could get it. The whisky was in two kegs of ten 'and fifteen gallons apiece, and sold by 'an old looking man whom Wriggins did not know. Defendants were not there, -and Wriggins never-saw either of them until this trial. A wagon was near the house of Andrew Denson. On December 24th, George Oook passed the house- of B. F. Posey and asked Posey if he wanted some good tobacco; he s-ai-d he had a lot of it in the wagon, and gave Posey a sam-ple. Posey bought some tobacco' from Oook, which he delivered afterwards. Posey sent for s-ome brandy by Dyar, who- went to- Denson’s, but-no whisky was there. Posey was at Denson’s, and the brandy that Dyar got for him he got out in the- Hack Johnson field near Denson’s house. Posey never saw either of defendants sell whisky or brandy. On December 24th, Dyar went np to- Denson’s to get some brandy and saw George Oook at the house, but did not get any brandy there. Dyar did get some- brandy some distance from the house. Dyar met an old man near the- house- and asked him if he could get some brandy; the man said, “Let’s take a walk,” and Dyar went off in the- field with him -about half a mile, and he sold Dyar some brandy which Dy'ar paid him for. George Oook did not go with them .-and had nothing-to s-ay -about it, and his brother had nothing to do with the sale. Posey put Dyar on to it and went with Dyar to show him where he could get it. In the afternoon of the same day Chambers, in Bartow county, beyond Denson’s, overtook a w-agon which was headed towards the mountains. An old man was driving the wagon, and defendants and a young man named Dens-o-n were near the wagon. Bought a quart from the old man. Chambers never saw either off defendants sell a drop. About two- o’clock on the night -before December 24th, when Halcomb -was- spending the-night at Denson’s, defendants and old man Stansell arrived in a covered wagon with whisky and tobacco in it. The wagon and one of the mules belonged to Dick Oook and the-other mule to- Stansell. George Oook slept in the w-agon that night, and Stansell and Dick in the house. George-said that he and his (brother and (Stansell were interested in some whisky they had hauled down, and that each owned one third of it. ITalcomb saw 'Waldrup come to the house that morning and go> to- the-place where old man Stansell was and get into the wagon. George 'Cook came with 'Wa-ldrup but went in the house. ITaloomb never sa>w defendants sell any whisky. The- whisky was in kegs in the wagon. Defendants and Stansell live near each other and near the line of Pickens and Gilmer conn-ties. They left for home late in the evening of December 2éth. The wagon and whisky were- carried out in Johnson’s field that morning. S. A. Denson, brother-in-law of George O-ook, went home with defendants. They were walking, and the wagon was behind with old man 'Stansell driving, when Jim and Charley Chambers caught up with it and had some talk with Stansell. Defendants were with Denson at that time away from the wagon, and Denson knows they had nothing to do with what transpired at the wagon, -any more than Denson did.
   Simmons, C. J.

This being an indictment for a misdemeanor against two persons, upon which they were jointly tried and convicted, and the only question for review by this court being whether or not the verdict was contrary to the evidence, and it appearing that there was sufficient evidence to support the conviction of one of the accused but not that of the other, the judgment as to the former is affirmed, and as to the latter reversed.

J. W. Harris, Jr., for plaintiffs in error.

A. W. Fite, solioitor-gemral, by A. 8. Johnson, contra.  