¶1The affidavit was sufficient to entitle the plaintiff in error, to an appeal from the judgment of the justice, and to have the judgment reversed, or, at least to a new trial in the District Court. Taking the facts therein stated as true, which is the effect of a motion to dismiss for insufficiency, there was no evidence before the justice to convict the plaintiff in error, of selling intoxicating liquors. The witnesses testified that he sold only “ spruce beer,” and that it would not intoxicate any person. If the prosecuting attorney wished to controvert the statements of the affidavit,, as to the testimony given on the trial before the justice, he should have had a rule entered against the justice, to certify to the District Court all the evidence given on the trial before him. As this was not done, the statements of the affidavit are to be taken as true; aril taking them as true, the plaintiff in error was found guilty on insufficient evidence. The District Court should either have reversed the judgment, or allowed a new trial.
¶2Judgment reversed.