The defendant was convicted of selling spirituous liquors, without license, and contrary to law. The uncontroverted testimony of the witnesses Price and Hollan shows, that the defendant delivered to the latter about three gills of whiskey, and that Hollan paid him thirty-five cents in cash. It is not pretended that defendant had *26a license to retail, his occupation being that of a butcher. The contention seems to be, that defendant sold some beef to Hollan, and gave him the whiskey without consideration. The charge of the court, instructing the jury to find the defendant guilty, if they believed the evidence, in effect pronounces the pretended sale of the beef a device and a sham to cover the actual sale of the whiskey.
1. It is our opinion that the evidence authorized the charge. It is perfectly manifest from the record, that the undisputed facts clearly showed the transaction to be a sale of the whiskey, and not of the beef — the latter article not being worth the money paid, and not being delivered until several days. afterwards. The witness paid the money for the whiskey, and so expressed himself at the time to the seller. He applied to buy whiskey, and not beef. He carried whiskey away with him when he left, and carried no beef. • The conduct of the defendant, when he received the money, in turning his face away and shaking his head, had no tendency to disprove the transparent character of the delivery as a sale, or to disprove it as a gift.
2. The trial judge acted, we think, within the bounds of judicial propriety, in eso mero motu making inquiry of the jury as to the nature of the difficulty which seemed to delay their deliberations, And, upon being informed that they disagreed as to the law, the jury was correctly informed that they must take the law as given them by the court in its charge; and while they might disbelieve the witnesses on the ground of perjury, or other reason, they could not captiously reject their testimony without cause. We discover nothing in this instruction which is not sanctioned by sound practice, and by unquestionable principles of settled law.
Judgment affirmed.