The record of the prior conviction alleged in the indictment was properly admitted. None more extended had been, or is usually, made. The addition of the indictment would have given no more information as to the nature of the *506offence charged than is obtained from the record. In each, it is described in the same language, using the words of the statute, viz.: "A common seller of intoxicating liquors.” The issue tried and conviction following, is so clearly set out as to leave no room for mistake.
The error is in the instruction to the jury in which they were told "that if they were satisfied beyond a reasonable doubt, from all the evidence introduced before them, that the defendant had, during any portion of the time named in the indictment, been engaged in selling intoxicating liquors as a business, they should return a verdict of guilty.” Thus the jury were required to, and did render a verdict of guilty of the higher offence charged, upon testimony sufficient only to convict of the lower.
It may be true that so far as the sufficiency and legal effect of the record are involved, a question of law only is presented. But the identity of the defendant on trial, with the person named in the record, is a question of fact. The identity of name is some evidence of identity of person, more or less potent, according to the connecting circumstances, but it is not, certainly in this case, sufficiently conclusive to authorize the court to take it from the jury and treat it as a question of law.
But neither of the rulings objected to in any way affects the verdict so far as it relates to the lower offence charged. Upon that, it rests on evidence and instructions not objected to. The prosecuting officer may therefore enter a nol. pros. as to the allegation in the indictment of a prior conviction, and let there be judgment for the state, otherwise the exceptions must be sustained.
Peters, C. J., Walton, Virgin, Emery and Foster, JJ., concurred.