The plaintiffs in error, hereinafter called defendants, were convicted in the county court of Carter county upon a charge of having possession of whisky wtih intent to sell, and punishment of defendants Alfred Davis and Lon McMillan fixed at a fine of $250 and 90 days in the county jail, and that of the defendant Wesley Davis at a fine of $50 and 30 days in the county jail.

The only assignment of error argued is that the evidence is insufficient to sustain the judgment. Briefly, the evidence for the state is that of two officers, who testify that they were watching the premises of the elder Davis and saw the defendants Alfred Davis and Lon McMillan procure a number of bottles, apparently 3 or 4 in each hand, all of which were brown except one, which was clear glass. These bottles they put in a car and drove away. Later they returned, and, as they approached the house, ran the car upon a stump and bent an axle or radius rod. At that time the officers came up, and the defendants Alfred Davis and McMillan took the car away to be repaired. The officers went about 100 yards in the direction from which the car came and found 11 pints of whisky in bottles covered with leaves, all of which were brown except one clear bottle. Tracks were around, appearing to have been recently made. No bottles were in the car. There were some other slight *89 circumstances. The testimony of the defendants Alfred Davis and McMillan appears to be somewhat evasive.

The evidence as to the defendants Alfred Davis and Lon McMillan is sufficient to sustain the verdict and as to the defendant Wesley Davis it is insufficient.

The case is reversed as to the defendant Wesley Davis and affirmed as to defendants Alfred Davis and Lon McMillan.