#### STATE v. WILLIAM TUTTLE, ERNEST TUTTLE and RUFUS MERRITT.

(Filed 12 December, 1928.)

Criminal Law — Evidence—Weight and Sufficiency.

A motion for judgment as of nonsuit upon tbe evidence should be granted when the evidence is purely conjectural as to the identity of the defendants tried for a violation of the prohibition statute.

*386Appeal by defendants, William and Ernest Tuttle, from Deal, J., and a jury, at April Special Term, 1928, of Stoices.

Reversed.

. .Attorney-General Brummitt and Assistant Attorney-General Nash, for the State.

W. Beade Johnson for defendants, William and Ernest Tuttle.

Pee Cueiam.

The three defendants were convicted of violating the law against the manufacture, etc., of intoxicating liquors.

The defendant, Rufus Merritt, was sentenced by the court below and did not. appeal. The Tuttles introduced no evidence in the court below, and at the conclusion of the State’s evidence, demurred .to the evidence and moved to .dismiss the action or for judgment of nonsuit. C. S., 4643.

The appeal presents the sole question as to the sufficiency of the State’s evidence to support the verdict. The evidence was wholly circumstantial. As to the identity of the Tuttles, it was merely, suspicion and conjecture. . ' '

After a thorough and careful examination of the evidence, as appears in the record, we are of the opinion that it is not sufficient to support the verdict and judgment thereon. The judgment of the court below is

Reversed.