delivered the opinion of the court.
The first instruction for the State should not have been given. The instruction asked by the appellant should not have been refused. Penal statutes cannot properly be so construed as to embrace cases not plainly within their meaning or letter. If appellant and Jackson united their means and bought a gallon of whisky which was afterward divided between them in proportion to what each advanced for the purpose, it constituted no violation of law. It was not a sale by either to the other, but a purchase by them, and a division between them of the fruits of a joint and lawful investment.
And the legal aspect of the transaction would not be changed, if, as assumed in the instruction asked by appellant, Jackson had given appellant money to buy for him, Jackson, less than a gallon of whisky, which was afterward bought and delivered to him in good faith by appellant. In such case appellant would have been but the agent of Jackson, and the person who sold the liquor, and not the one who bought it, would have violated the law.
Reversed.