¶1This is a conviction for pursuing the occupation of selling spirituous, vinous and malt liquors in quantities less than one quart, without license, etc.
¶2Defendant sold whisky in quantities less than one quart from about ¡November 10, 1884, to about January 6, 1885. One W. B= Anderson procured license to pursue the occupation on the 26th day of ¡November, 1884. The license covered the time from the 19th day of September, 1884, to the 19th day of September, 1885.
¶3It will be observed that the period of time in which defendant Wells sold whisky was covered by Anderson’s license. The issue upon the trial was whether Wells sold the whisky as the bar tender of Anderson or as the bar tender of Straus & Levy. If as the bar tender of Anderson, he was not guilty, as Anderson had a license to sell. If as the bar tender of Straus & Levy, it is urged by the State that defendant is guilty, because Anderson could not transfer his license to Straus & Levy, and hence as their clerk or agent the defendant had no legal right to sell.
¶4First, we are of the opinion that Wells was clearly shown to have been the agent or clerk of Anderson. 2. But, if there was a transfer by Anderson of the stock and saloon fixtures to Straus & Levy, it was not of such a character as would deprive Anderson of the right to pursue the occupation of selling the liquors under his license, and hence defendant, his bar tender, would not be guilty. We are therefore of the opinion that the verdict of the jury has no support in the evidence.
¶5His honor below instructed the jury at great length, and to ug portions of his charge seem to be in conflict. To convict the defendant the jury must believe from the evidence that defendant pursued, followed and was engaged in the occupation of selling spirituous liquors, etc., in quantities less than one quart.
¶6Because the verdict is not supported by the evidence, the judgment is reversed and the case remanded.
¶7Reversed emd remanded.
¶8[Opinion delivered June 10, 1885.]