¶1 This was an indictment for selling liquor contrary to the Statute, and it was alleged that Simmons and Bradley were both guilty as the indictment charged a sale by Simmons and Bradley, but it turned out in the evidence that the sale of the spirits was by Simmons alone; and it is contended that as Simmons alone sold the spirits, even he could not be convicted, and as two were charged with selling the spirits, and but one convicted, it constituted a fatal variance. We are not aware of any authority for such a position, and the authorities cited lor the defendant do not sustain the position.
¶2 It appears from the evidence that the defendant Simmons contracted for a gallon, and at the time delivered but a pint, and received no money for this first pint delivered, defendant submitted and was fined. That on the nest day he paid lor the gallon, received three quarts and on the following day received the remainder of the purchase. And His Honor upon, this evidence instructed the jury that if they believed the evidence defendant was guilty. In this there was error. Had His Honor directed the jury to enquire whether this was artifice to evade the Statute, and they had so found we could not ' disturb the verdict, however improper it might have been, upon the proof offered.
¶3 We think upon the proof it was a purchase of a gallon, and *624 His Honor charged the jury that unless the receiving this pint was an artifice to evade the Statute, the defendant was not guilty.
¶4 There was error. Let this be certified.
¶5 Per Curiam. Venire de novo.