127 Ga. 283 | Ga. | 1907
1. Where one entrusts another, with money with which to buy whisky for him, the person so entrusted not receiving any profit from the transaction or compensation for his service, that person is not guilty of retailing without a license merely for the reason that he receives the money, expends it in the purchase of whisky, and delivers it to the person who entrusted him with the money. This is true even though the person purchasing the whisky for the other purchases at the same time for himself an equal quantity, and all is placed in one vessel, and thereafter divided between them. If in. a given case the jury is satisfied that the transaction in question is of the character above indicated, a conviction for the offense of retailing without a license would be unauthorized; but if the jury should be of the opinion that such was not the real transaction, but the whole was a scheme to cover an illegal sale of whisky, a conviction would be authorized.
2. One of the instructions of the judge, upon whicli error was assigned, not being consistent with the rule above laid down, and the error thus committed being, under the facts of the case, of such a character as to prejudice the accused, a new trial should have been granted.
Judgment reversed.