(Syllabus.)

Appeal and Error — Intoxicating Liquors — Necessity for Proof of Possession. To justify or sustain a conviction of having possession of mash, wort, and wash fit for distillation of intoxicating liquor with intent to violate any of the provisions of the prohibitory liquor law, there must be evidence sufficient to prove possession. When a verdict is manifestly contrary to the evidence, this court has no discretion but must reverse the judgment.

Appeal from County Court, Carter County; Arthur Grunert, Judge.

L.N. (Newton) Camp was convicted of having unlawful possession of mash, wort, and wash, and he appeals. Reversed.

Bass & Hardy, for plaintiff in error.

Marvin Shilling, Asst. Co. Atty., for the State.

CHAPPELL, J. The plaintiff in error, hereinafter called defendant, was convicted in the county court of Carter county on a charge of having possession of mash, wort, and wash, and his punishment fixed at fine of $50 and imprisonment in the county jail for a period of 30 days.

It is contended that the verdict is contrary to the evidence and is insufficient to sustain the conviction. The state produced Jess Salyers and Sid Jackson, who testified that they found two 50-gallon barrels of what you call mash to make liquor out of; that the defendant and his father lived about one-half mile apart, and that the barrels were located about halfway between the two houses; that they watched the barrels at night for a week and

Page 71

never saw the defendant near the barrels nor having anything to do with them. There is no evidence in the record to show that the defendant knew any barrels were there or that he had any interest in them or control over them. The county attorney should never have permitted the case to go to trial. When the evidence of the state was introduced it was the duty of the trial court to advise the jury to return a verdict of not guilty. It would save expense to the state and expediate the business of the courts if county attorneys and trial judges would dismiss such cases as this without permitting them to come to trial.

For the reasons stated the cause is reversed.

DAVENPORT, J., concurs.

EDWARDS, P.J., not participating.