#### STATE, Respondent, v. PHILIP et al, Appellants.

(191 N. W. 443.)

(File No. 5150.

Opinion filed December 30, 1922.)

Criminal Law — Intoxicating Liquors — Evidence. Held to Corroborate Accomplices and Sustain Conviction for Unlawfully Transporting.

Evidence held sufficient corroboration of accomplices required by Rev. Code 1919, Sec. 4882, and sufficient to sustain conviction for unlawfully transporting intoxicating liquor. . ..

Appeal- from-' Circuit Court, Plaakon County, Hon.- John F. Hughes, Judge.

Roderick Philip and. Andrew! Leonard were convicted of transporting intoxicating liquor, and they appeal.

Affirmed.

*F. W.*Lambert, of Et. Pierre, for Appellants.

*Byron S.*Payne, Attorney General, and1 *Benj. D. Mintener,*Assistant Attorney General, for Respondent.

Appellants cited: State v. Hicks, 6 S'. D. 323; State v. Fullerton Lumber -Co., 35 S. -D. 432; Crowell v. State, 24 Tex. App. 404, 6 S-. W. 318; State'v. Koplan (Mo.), 66 S. W. 967; State v. Stephenson (Mont.), 67 Pac. 1001; Smith v. State, (Wyo.), 67 Pac. 977; Malachi v. State, 89 Ala. 134; Chapman v. State, 112 *139Ga. 56; State v. Allen, 57 la. 431; State v. Hennessy, 55 la. 299; Commonwealth v. Bosworth (Mass.), 22 Pick. 397; Wright v. State, 43 Tex. 170; Gillian v. State, 3 Tex. App. 132; State v. Willis, 9 la. 382: Johnson, v. State (Tex.), 32 S. W. 1041; State v. Kemp (N. D)„ 62 N. W. 631.

Respondent cited: State v. Drapeau (S. D.), 189 N. W. 305; State v. Sonneschein, 37 S. D. 585, 159 N. W. xoi; State v. Walsh, 25 S. D. 30, 125 N. W. 295; State v. Hicks, 6 S. D. 325; 16 C. J. 708 (1446) ; R. S., Sec. 4882; '16 C. J. 711-712.

BOLLEY, J.

The defendants were convicted1 upon indictment charging them, with having carried and transported intoxicating liquors from one place within the state to> another place within the state. From the judgment on this conviction and from an order denying a new trial defendants appeal to this court.

The testimony tends to show that on or about the date named1 in the indictments appellants went to the place of business in Philip of one Larson, who whs the principal witness on behalf of the state, and asked Larson if h.e would like to buy something to drink. Larson said that he would. Appellants then left the place, but' returned on the following- day with an automobile. Larson went out to the car, and appellant Philip said, “We are going out .to get that sack.” Larson then got into the car, and they -drove out to a place about three miles north of Philip, and stopped the car by a small -bridge or culvert in the- road. Philip went to *the*bridge and pulled out a partly filled gunny sack and also produced, either from' his pocket or from under the bridge, a bottle of whisky, from which all three of them, took several drinks. They then put the sack, without opening it, into the car and drove west a distance of something like three miles to a small house or shade owned by one Skarsheim-, who was an acquaintance of Larson’s, and who was a witness for the state at thie trial. Larson asked Skarsheim if he could leave the sack there. Skarsheim said that he could, and one of the appellants took the sack out of the car and into the house and left it there. One of the appellants then produced the bottle that they drank out of at the culvert, and all four of them' took a drink out of it.

The case appears to 'have -been tried on the theory that Larson was an accomplice, and for the purposes of corroborating 'his testimony the state called one Eva Scliroll, who was employed as *140a clerk in Larson’s store as a witness. She testified that on about the date mentioned in the indictment she saw the appellants drive up to Larson’s store in the car; that Larson got into the car with them', and that they drove out of tow® *to*the north; that she saw them return in the same -car and stop at Larson’s store; that Larson got out of the caí-, and appellants drove away to the west-

The said Skarsheim .testified that about the time mentioned in the indictment Larson came to-his place in a car with two. strangers ; that they left a sack partly filled with something in his shack; and that one of said strangers produced a bottle of whisky from which they all took a drink. He did not know the appellants and could not, or at least would not, identify them at the-trial, but did testify that that was the only time that Larson was there with strangers. The sack in question had not been opened at all up to the time it was left at Skarsheim’s house. Larson returned for it the following day, but in the meantime it had been stolen, and he never did see what was in it, but one of the appellants told him it was whisky, and that it was the same kind of whisky they drank out .of the bottle.

We think this evidence is sufficient to support the verdic-t, and that the- corrbex-ating testimoxxy of Schroll and Skarsheim was-sufficient to satisfy the statute. Section 4882. -What constitutes con-borating evidence under this statute has recexitly been discussed by this court, and it is unirecessary to go into it in this case. State v. Sonnenschein, 37 S. D. 585, 159 N. W. 101; State v. Drapeau (S. D.), 189 N. *W.*305; State v. Odle, (S. D.), 189 N. W. 515.

Tf the testimony of Skarsheim is true, it alone is sufficient to-prove that appellaxits ti-anspox"ted intoxicating liquor from a place-within the state to another place in this state.

The judgment and order appealed 'from are affirmed.

Note — Reported in 191 N. W- 443'.' See American Ke-’-Numbered. Digest, Criminal Law, Key-No. 511(1), 16 C. J. 1457-1458.