delivered the opinion of the court.
Appellant was tried and convicted on an indictment ■charging him with the unlawful sale of intoxicating liquors. The testimony of the sole witness for the state showed that he purchased from appellant a pint of whisky and paid money therefor. The evidence for the defense showed that appellant refused to sell the whisky, but loaned to the witness, about a half pint of some whisky which he had left over from Christmas, upon the understanding that the samé amount of whisky would be returned to him.
Appellant assigns 'as error the giving1 of the following instruction for the state:
‘ ‘ The court instructs the jury for the state that if they believe from the evidence beyond a reasonable doubt that the defendant either sold whisky to the witness Vaughn ■and received money therefor upon the occasion testified to by said witness, or that the defendant loaned whisky upon said occasion to said witness with the understanding and agreement then had between them that said witness was to return other whisky to the defendant for or in the place and stead of the whisky then loaned and delivered by the defendant to said witness, the jury should return a verdict of guilty as charged.”
The statute (chapter 113 of the Laws of Mississippi of 1908) prohibits the selling, bartering, or giving away to induce trade of intoxicating liquors. It will be noted that the indictment in this case charges only a sale. A sale is a transfer of property upon a consideration of the payment of money. In a barter goods are exchanged for other goods. In a loan, such as is testified to in this case, goods or property are delivered from one party to another to be returned by the latter to the lender in kind. According to the testimony for the-defense the lending of the whisky to be returned in kind was done as an accommodation.
*534. In the case of State v. Austin, 23 So. 34, the court held that section 1088 of the Code of 1892, which provides a penalty for selling property which' had been before sold,, etc., without informing- the person to whom the sale is. made of the exact state of the property affected, did not apply to a case where such property is exchanged for other personal property and money does not pass. We-quote from the opinion of the court in that case delivered by Judge Tarrall as follows:
“Section 1088, Ann. Code, applies only to a sale, and a sale ‘means, at all times, a contract between parties to-to give and pass rights and property for money. ’ 2 Bur-rill, Law Diet. Penal statutes are to be construed strictly,, and a thing, to be indictable, must come within the letter as well as the spirit of the statute. State v. Baker, 47 Miss. 94.”
The instruction complained of should not have been given. If the jury believed from the evidence that appellant, as an accommodation to the witness, loaned him thewhisky, as testified by the witnesses for the defense, then they were not authorized to return a verdict of guilty of the offense of selling the liquor, as charged in the indictment.
Reversed and remanded..