charging the jury.
Gentlemen of the jury :■—In this indictment the defendant is charged with selling liquor unlawfully to the prosecuting witness. The question raised before you is whether there was what the law. considers a sale of whiskey to the prosecuting witness. A sale is the delivery of an article, whiskey in this case, to another, the prosecuting witness, for a consideration—either money or other valuable consideration. The question before you is *459whether the defendant delivered this whiskey to the prosecuting witness and received money from the prosecuting witness for it.
It was testified before you, for you to believe it or not as you may find the facts to be, that the prosecuting witness laid down on the table in the presence of the defendant and in the defendant’s own house, a certain sum of money. If you believe that the prosecuting witness got the whiskey in question and laid down the money on the table in the defendant’s presence and house as payment for it, your verdict should be guilty, whether the defendant accepted the money then or afterwards—unless he was licensed to sell intoxicating liquors and there is no evidence that he was so licensed. It is for you to decide between the witnesses as to whether this colored man, the defendant,-did accept said money.
Now the rule of law is, where evidence is conflicting after considering all the testimony on both sides, that you may believe that which you consider true, believe the witnesses whom you deem truthful, and reject that which you believe is not true; and where evidence is conflicting you are to reconcile it if you can, but if you cannot, you are to believe that which, under all the facts and circumstances in evidence, seems most entitled to belief. As jurors you should do your duty to both the State and the prisoner, and act with the sound, vigorous common sense of fair-minded, reasonable and impartial men—determined that the accused shall not be convicted upon insufficient and unreliable testimony, and that the law shall not be violated or evaded by any cunning pretence or subterfuge of the real lawbreaker.
Now, gentlemen, you will retire to your chambers and find according to the evidence and the law as laid down to you by this Court. You are the judges of the credibility of the witnesses, which credibility you are to determine from the appearance, manner of testifying, etc. of the witnesses and the evidence before you.
The jury disagreed.