Appeal from Circuit Court of Etowah.

Tried before Hon. W. L. WHITLOCK.

The appellant, Randall Hensly, was indicted and convicted under § 3618 R. C. for retailing spirituous liquor without license. One Spurlock, a state’s witness, testified that, within twelve months before the finding of the indictment, he went to Hensly’s residence, and, in his house and presence, asked his wife for the whiskey, who went to the “ smoke-house ” near by and got it, returning with it to the shoe-bench, at which witness and defendant remained while she was gone, and there, delivered a pint of whiskey to witness in defendant’s presence. This witness further testified that “ he had, on various occasions, bought whiskey from defendant’s wife, at his residence, during said year, in quantities of a quart and above, and during or while'witness was getting the whiskey, defendant was knocking about the premises.” Another witness for the State testified that “ he had often got whiskey from defendant’s wife during the year before the indictment was found, at' his residence, in quantities from a half pint to a quart and above ; that defendant was present on one occasion, and about the premises on the others, but said and did nothing in regard to the sale and delivery of the whiskey.”

After this, the defendant moved the court to exclude all the evidence of sales of a quart and over, on the ground that it was illegal, irrelevant, and inadmissible, under the issues. The court overruled this motion and defendant excepted.

The court of its own motion charged the jury, “ if they believed, from the evidence, that the wife of defendant sold whiskey in quantities less than a quart, in said county, within twelve months before the finding of the indictment, in the presence or within the knowledge of the defendant, he is guilty as charged.” The defendant excepted to the giving of this charge, and requested the court to give the following written charges ; each of which the court refused, and to each of which refusals defendant duly excepted.

1. “ If the jury believe from the evidence that Spurlock went to defendant’s house and asked his wife in his presence for whiskey, and she went to the smoke-house and got it, in a quantity less than a quart, and took it into the house in presence of defendant, and Spurlock took it away, then defendant is not guilty.”

2. “ The State is bound to prove a sale, and if it has failed to prove what was paid or to be paid for the whiskey, then no sale is proved and the jury cannot find defendant guilty.”

The various rulings to which exceptions were reserved are now assigned for error.

1. The evidence does not show such a presence of the husband as will raise the legal presumption of coercion by him. The wife acted voluntarily in the matter, and defendant had not part or lot in it. 2 Russ, on Crimes, p. 21. The court should at least have left the question of coercion to be passed on by the jury. State v. Parkerson, 1 Strobhart, 169.

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