The plaintiff was indicted, tried and convicted for selling spirituous liquors in a less quantity than one gallon, in the Court of Common Pleas of the city of Elgin. The defendant entered a motion in arrest of judgment and for a new trial, which were overruled by the court, and the plaintiff was fined thirty dollars and costs, from which judgment he appeals to this court. It was agreed, on the trial, that the city of Elgin was incorporated by act of the legislature, which conferred on the corporate authorities of the city, power to license the sale of liquors, and to tax, restrain and prohibit tippling houses and dram shops, and to impose fines and penalties for a breach of any ordinance of the city, and to provide for the recovery and appropriation of such fines; and that the city had, in pursuance of the authority contained in its charter, by ordinance, regulated the sale of spirituous liquors in the city of Elgin. The evidence showed that plaintiff sold the liquor for which he was indicted, in the corporate limits of the city, and he introduced no evidence to show that it was sold pursuant to city ordinance. Upon this state of facts, it is urged that the court had no jurisdiction to try plaintiff under the laws of the State for this offense. This question was determined at the present term of this court, in the case of Gardner v. The People, post, and it is deemed unnecessary to again discuss it in this case. It was insisted that the court erred in refusing to give the following instruction to the jury: “ That before you can find the defendant guilty, you must believe, from the evidence, that not only liquor was handed to a person who asked for it, but that the liquor was paid for or charged to some one.” This instruction is not the law. It assumes that the only mode by which a sale of liquor can be effected, is by its being handed to a person who asked for it. It undoubtedly may be sold in many other modes than by being handed to a person, nor is it nécessary that it should be asked for, to make its sale complete. A sale might be consummated, the property pass, and be paid for, in other modes than being asked for. This instruction, if given, would have precluded the jury from convicting, if a sale had been effected in any other rpode. The instruction was properly refused, and the judgment of the court below should be affirmed.
Judgment affirmed.