Appeal from Pontotoc County Court; Conway O. Barton, Judge.

Emmett Sanders and John Sanders were convicted of violating the prohibitory law, and appeal. Reversed.

Page 747

Stone & Maxey, for plaintiffs in error.

Smith C. Matson, Asst. Atty. Gen., for the State.

PER CURIAM. The plaintiffs in error. Emmett and John Sanders, were convicted at the April, 1911, term of the county court of Pontotoc county on a charge of having unlawful possession of intoxicating liquors with intent to sell the same, and their punishment fixed at a fine of fifty dollars each, and imprisonment for a term of thirty days each in the county jail. The proof in this case shows that the accused, Emmett Sanders received a consignment of whisky from the railroad company at Fitzhugh, Oklahoma, and was taking the same off in a wagon. That John Sanders was riding along the road on horse-back near the wagon. The whisky was consigned to Emmett Sanders, and there is nothing whatever to connect John Sanders with the transaction, further than that he was riding along the road on horseback near the wagon in which the whisky was being hauled. There is a total want of proof upon the part of the state to establish the intent to sell the whisky. There was not even an attempt made by the prosecution to show that the whisky was intended for sale, further than to establish the quantity of the liquor in possession of the accused, and the fact that the accused had received other shipments. This court has so often held that possession alone is not sufficient to sustain a conviction had for the unlawful possession of whisky with intent to sell the same that it is useless to deal with this question at length. The judgment cannot be upheld. Let the judgment of the trial court be reversed, and the cause remanded with directions to grant a new trial.