¶1 The instruction given to the jury, we think, is erroneous.
¶2 ' The facts proved by the testimony of the witness, Perry, were susceptible of two constructions: either that the transaction of obtaining the spirits was a subterfuge, and the defendant was the real vender of the spirits, or he acted in good faith as the agent of the witness in purchasing it for the witness. If the former was the nature of the transaction, then the defendant is guilty; but if the latter, then he is not guilty. The court should have left it to the jury to say how that was.
¶3 But when His Honor instructed the jury “ that- if they believed the evidence, the defendant was guilty,” it took away from the jury the right to consider the bona fieles of the transaction, which, in- our opinion, was, upon the evidence, a proper subject for their consideration.
¶4 There is error, and the judgment of the court below is reversed. Let this be certified to the superior court of Orange county, that further proceedings may be had according to law.
¶5 Error. Venire de-novo.