(Syllabus.)

Intoxicating Liquors — Insufficiency of Evidence. In a prosecution for violating the prohibitory liquor law, evidence held insufficient to sustain a conviction.

Appeal from County Court, Pawnee County; George E. Merritt, Judge.

Ben Howell was convicted of violating the prohibitory liquor law, and he appeals. Reversed.

Redmond S. Cole, for plaintiff in error.

R. McMillan, Asst. Atty. Gen., for the State.

Page 152

PER CURIAM. The plaintiff in error, Ben Howell, was convicted at the October, 1916, term of the county court of Pawnee county on a charge of unlawfully conveying intoxicating liquor from a building in the town of Jennings to a place near the Palace Rooming House in said town, and his punishment fixed at a fine of $100 and imprisonment in the county jail for a period of 90 days.

The evidence for the state shows that the defendant started from a little outhouse carrying a sack containing 20 bottles of beer, and was going into the Palace Rooming House when he was arrested by the officers.

As a witness in his own behalf the defendant testified he had lived in Jennings two years and was half owner of the Palace Rooming House; that about six weeks previous to his arrest he had ordered from Joplin for his own personal use a barrel of beer, and when it came he asked and received permission to lock it in a nearby building, owned by the town justice of Jennings; that he never sold any of this beer and had never been convicted of a violation of the prohibitory liquor laws and had never ordered or received but the one barrel; that on the night of his arrest he saw two boys, naming them, peeping through a crack into the room where the beer was and he ordered them away from the place; that he put all the beer that was left in a sack to take to his room in the Palace Rooming House, to keep the boys from stealing it; that he had kept the beer in the outbuilding because the rooming house was a public place; that the outhouse where the beer was kept was 50 feet in the rear of the Palace Rooming House.

We deem it unnecessary to consider the other errors assigned. It is sufficient to say, after a careful examination and consideration of the testimony, we are of the opinion that the conviction is not sustained by the evidence. Wherefore the judgment is reversed.