The trial court erred in rendering a judgment of conviction against the appellant. Under all the evidence adduced, he was entitled to his discharge.

The prosecution was based as for a violation of Schedule 129, Revenue Laws 1929, p. 290 (Gen. Acts, 1919, Schedules 73, p. 423), in that he "did operate a penny in slot machine without a license as required by law." *Page 609

The state failed to meet the burden of proof necessary to sustain the averments in the affidavit upon which this prosecution was predicated. On the trial there was no evidence that the accused operated a penny in slot machine as charged. To the contrary, the evidence without dispute tended to show that the slot machine in question was left with defendant temporarily by the owner thereof, and also that he had never operated the machine or caused or permitted it to be done. There was also evidence that the machine in question was out of order and could not be operated.

The judgment of conviction from which this appeal was taken is reversed, and, as the case was tried by the court without a jury, a judgment will here be rendered discharging appellant from further custody in this proceeding. Defendant discharged.

Reversed and rendered.