The defendant and Rufus Davis were jointly charged in the Circuit Court of St. Clair County, with willfully, unlawfully and feloniously transporting “about two gallons of hoоtch, moonshine, corn whiskey.” The defendant was tried alone, found guilty, and sentenced to imprisonment in the penitentiary for twо years, in accordance with the verdict of the jury. In due course, he appealed.
The evidence adducеd by the State is substantially as follows:
In the afternoon of May 23, 1928, Edward Myers, City Attorney of Appleton City, in St. Clair County, saw Davis put “some objеct or other” in an old Chevrolet touring ear, which was parked on 4th Street in Appleton City. Shortly thereafter, Myers talked to Davis, and observed that Davis was intoxicated. “Davis had a reputation of handling liquor and of drinking a good deal,” and Myers “had a suspicion that there was whiskey there,” in the car. Myers “looked into” the car, and “raised up” a cloth in the “back end,” and then telephoned H. E. Kirk, the city marshal. At that time, the defendant came “up the street,” and he and Davis entered the cаr. When Kirk arrived, the defendant and Davis were in the front seat, “ready to leave, ’ ’ with the defendant at the wheel. Kirk said to the dеfendant: “Hold on, we want you, and what you have here.” Then the defendant “leaned over,” and, “in a low-toned voice,” said to Myers: “ I will leave town right away. ’ ’ Kirk saw a one-gallon glass jug of liquor, and, upon removing “the cover,” found two more one-gallon glass jugs of liquor, “setting between the front and rear seat, on the bottom of the car. ’ ’ Two of the jugs were full of liquor, and the other one contained about a pint or quart of liquor. The liquor “looked like whiskey used to look” to Kirk. Kirk saw “the liquor in the car” before he arrested the defendant. The prosecuting attorney was notified of the occurrence, and “about nine o’clock that night” *972 the defendant was turned over to a -deputy sheriff. Myers took charge of the three jugs of liquor. One was stolen from the sheriff’s office prior to the trial, but the other two were produced at the trial, admitted in evidence, and exhibited before the jury. The liquor in these two jugs was “corn whiskey,” according to the testimony of four witnesses, two of whom smelled it and tasted it. One of these witnesses, Louis Jackson, a deputy sheriff, said it was “very similar to that which is unlawfully manufactured.” After the defendаnt was arrested, Myers asked him where he got the liquor, and he said “he got it from a farm up towards Kansas City.” He told Kirk “he got it near Kаnsas City;” and that “he was going fishing.” He told Charles Dingus, the mayor of Appleton City, “he got the liquor from a farm near Kansas City;” and that “he was going south, to Taberville,” in St. Clair County, about ten miles from Appleton City; and that “he was traveling in a Chevrolet Car.” On the day in question, John Chapel, a resident of Appleton City, saw Davis in an old Chevrolet touring car, about seven miles south of Appleton City, going north, towards Appleton City. Another man, whom Chapel did not know, ivas driving the car. When asked if the defendant “looked like” the mаn he saw in the ear with Davis, Chapel said: “I don’t remember.”
The defendant stood on his demurrer to the evidence, and now contends that the State failed to make a case for the jury.
After a careful consideration of the evidence, wе have concluded that the defendant is right in this contention. Where, as in this instance, the State relies wholly upon circumstantial evidence, “the circumstances, to warrant a conviction, must be consistent with each other, must tend to prove guilt, and not only must be consistent with the hypothesis of defendant’s guilt, but must be inconsistent with every other reasonable hypothesis, including the hypothesis of his innocence.” [16 C. J. 1011.] See, also, State v. Morney,
It will suffice to say that there is no substantial merit in any of thе other complaints of the defendant.
Because of the insufficiency of the evidence, the judgment is reversed and the cause remanded.