In the absence of defendant and his wife, a deputy sheriff and another went to the house where defendant lived, and in a barn located about 100 yards from the house, after diligent search, they claimed to have found a small catsup bottle full of whisky buried in the cotton seed, with some fruit jars and a still worm. When arrested and told that the bottle of whisky had been found, he said: “If you did, somebody else put it there.” There is absolutely no evidence tending to prove a guilty scienter in this ease, and the defendant should have been acquitted.
The cause was tried by the court without a jury, and the judgment of conviction was error. The judgment is reversed, and the cause is remanded.
Reversed and remanded.