Defendant assigns as error that the evidence is insufficient to sustain a verdict of guilty.

Upon the authority of State v. Smith, 249 N.C. 212, 105 S.E. 2d 622, we agree that the evidence is insufficient to support a verdict of guilty of the offense with which defendant was charged.

*564In this case the defendant offered no evidence, and, although defendant did not move for nonsuit, the sufficiency of the State’s evidence may be reviewed upon appeal. G.S. 15-173.1.

The officers observed defendant making sales of quantities of the whiskey from the gallon plastic jug. It seems that under the circumstances they would have been well advised to have charged defendant under G.S. 18-50 (rewritten effective 1 October 1971). In that event, it would have made no difference whether the whiskey was “taxpaid” or “non-taxpaid.”

The judgment entered in this case is vacated, the verdict of the jury is set aside, and the

Case dismissed.