Vinje, C. J.
We shall assume that the jury had a right to believe the statement of the sheriff that Butler handed *481the bottle to him upon demand. For searching the premises themselves no search warrant was necessary. Sec. 165.01, sub. (30c), Stats. So the evidence introduced was competent, and the only question that arises is as to its sufficiency to sustain a conviction. The court instructed the jury as follows: “The liquor, being in the room or immediately adjacent in a cellar or passageway connected therewith, was under the control of Butler if Butler knew of its presence or had it in his hand long enough before the sheriff entered to have had it removed from the premises or destroyed before the sheriff’s entrance by the exercise of reasonable diligence to that end,” and under such charge the jury could convict. But there are at least two errors in the charge. If Butler’s testimony as to how he came to have the bottle in his hand is true, he was not in the unlawful possession of it within the meaning of the statute, sec. 165.01, sub. (3), The mere fact that he held it in his hand a short time upon its being handed to him with the statement, “See what I found,” does not constitute unlawful possession. To constitute the latter he must be the owner, custodian, or bailee invested with some right of dominion over it. Nor did Butler have a right to destroy it even if he knew it was moonshine. He could of course require the possessor of it to remove it from the premises, and if he refused recourse could be had to officers of the law invested with the power of removing it. The instruction was highly prejudicial to the defendants and must result in a reversal of the judgment.
Lucia was not produced as a witness upon the trial, though the State, it is claimed, sought to secure his attendance. The defendant could probably.not have required him to testify so as to incriminate himself, but the State could. Sec. 165.01, sub. (25) ; State v. Grosnickle, 189 Wis. 17" court="Wis." date_filed="1926-01-12" href="https://app.midpage.ai/document/state-v-grosnickle-8194911?utm_source=webapp" opinion_id="8194911">189 Wis. 17, 206 N. W. 895. The briefs of both parties contain the suggestion that he “belonged” to the other. What the fact is we do not know.
*482We have also reached the conclusion that the evidence in this case is not sufficient to sustain a conviction. It is conceded that juries are not bound to accept as .true the testimony of any witness, but when testimony is rejected there must remain sufficient evidence to sustain a conviction beyond a reasonable doubt. If Butler’s testimony is rejected there does not remain proof of guilt beyond a reasonable doubt: But the jury did not have a right to reject Butler’s testimony. His explanation as to how the bottle came to his hand is not so improbable as to be discredited on that account, and there is not a sylláble of testimony to contradict him. In such case there should be nb conviction. There may be a strong suspicion of guilt, but no matter how strong the suspicion may be it is only a suspicion, and convictions cannot rest upon mere suspicions. It is unfortunate if a guilty man escape for lack of evidence, but it is not nearly so unfortunate as to permit innocent men to be convicted upon suspicion. As stated in a former case, Scott v. State, 190 Wis. 238, 244, 208 N. W. 795, 797, “In reaching our conclusion we are not unmindful of the ruíe as to fanciful or skeptical doubts; neither are we to be understood as attempting to demonstrate that the defendants are innocent. We simply say that their conviction is not sustained by that quantum and certainty of proof that the law requires.”
By the Court. — Judgment reversed, and cause remanded with directions to discharge the defendants.