The first instruction asked for by the defendant was very properly withheld by the court. It certainly does not appear from the allegations in the indictment that two or more of the counts contained in it depend, either in whole or in part, upon the same facts or transactions. On the other hand it is quite clear that evidence which would be sufficient to sustain either of the last two counts would not be sufficient to sustain the other, and proof of both would not establish the allegations in the first. And there is nothing upon the face of the indictment to show that, in making the charge against the defendant set forth in the first count, the grand jury took into consideration at all the evidence upon which they made their presentment against the defendant for the single sales described in the other counts. It was wholly immaterial in relation to this question that the district attorney had stated that he relied upon the evidence, so far as the jury should consider it applicable, to sustain either of the first two counts.
In relation to the second instruction asked for, it is apparent that the evidence produced in behalf of the government to show that the defendant’s authorized agent made the sale concerning which testimony was offered, was admissible and competent for that purpose. This is not contested by the defendant, and he *507admits also that the court prescribed the true legal role in reference to the proof which the government were required to make in respect to the agency. This being so, the question whether the evidence, which was circumstantial, and from which inferences were to be deduced, was sufficient to show that the person by whom the sale was made was the agent, in that transaction, of the defendant, was one purely of fact, and not of law, and therefore was properly submitted to the jury. It is only when there is no controversy between the parties as to the facts upon which the decision of a cause depends, that the court can be required to pass upon them as a question of law. Here the fact of agency, which was material to the determination of the issue, was the very question in dispute. The evidence produced to prove it was therefore of necessity to be submitted to the jury. If the defendant thought it insufficient to warrant them in finding that fact, his proper course would have been to submit a motion, after the rendition of a verdict against him, to set it aside for that cause.
Exceptions overruled.