¶1(after stating the facts.) The defendant was indicted and tried for an unlawful sale of beer to one Williams. His defense was that he did not sell the beer he was accused of selling, but purchased it for Williams at his request and with money that he owed Williams. It is not disputed that he owed Williams fifty cents, and the question for the jury to determine was whether he sold Williams the beer in payment of his debt or purchased it for him at his request and as his agent. If he purchased the beer and delivered it to Williams in payment of his debt, it would constitute a sale, and he would be guilty of violating the law. But if, at the request of Williams, the defendant expended the fifty cents he owed Williams in the purchase of beer for Williams, which he afterwards delivered, there would be no violation of the law against selling beer without license by defendant, for the reason that in such a ease there would be no sale by him. We do not doubt that the presiding judge fully comprehended the law on this point, but we are of the opinion that the oral instruction given by him was calculated to mislead the jury. The first portion of that instruction seems to lay stress on the fact that no money was paid by Williams to defendant at the time he requested defendant to get the beer, and the last paragraph lays stress on the fact that Williams did not direct defendant to purchase the beer at a licensed saloon. Now, such circumstances may be considered by the jury, along with other facts in evidence, in determining whether the defendant sold the beer or not, but the trial judge cannot in his charge make such circumstances the criterion by which to determine the guilt of defendant. To do so would be to invade the province of the jury.
¶2The defendant may not have been paid money by Williams, and Williams may not have directed him to purchase the beer at a licensed saloon, and yet defendant may have been innocent of the crime charged, for he may have in good faith purchased the beer as the agent of Williams at his request with the money he owed him.
¶3It should be remembered that the defendant was not accused of purchasing intoxicating liquor for another in a prohibited district or from an unlicensed dealer. He was accused of selling, not of buying, intoxicating liquor. Even had it been shown that he purchased the beer as the agent of Williams from an unlicensed dealer, he could not have been convicted under an indictment charging an unlawful sale of beer. But it is not disputed that he purchased the beer which he delivered to Williams from a licensed dealer, and for this reason the reference to the question of a purchase from an unlicensed dealer in the instructions, both those asked by the defendant and those given by the court, was unnecessary, and tended more or less to confuse the issue, which was whether defendant had sold beer, not whether he had made a purchase for another in a prohibited district.
¶4For the error indicated the judgment is reversed, and the cause remanded for a new trial.