Cobb, 3?. J.
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.
All the Justices concur, except Fish, O. J., absent.
One of the grounds of the defendant’s motion for a new trial, the overruling of which is assigned as error, is that the court erred in charging the jury as follows: “If you find from the evidence that the witness, in the case delivered to the defendant money with which to order whisky for him — dor the witness; if you believe that the defendant ordered whisky for himself as well as the witness, through another party, and gave the money to another party, and through that party ordered the whisky; and if it was delivered to the defendant by the other party in bulk, — that is, the whisky all together; and if from that bulk he received in bulk in this county, and if in this county he separated it, — that is, took a portion of it'from the bulk and delivered it to the witness, in consideration of the money he had received from him, and that all oc■curred in this county, . . that would be a sale in law, and a sale in this county. The sale would not be complete until the ■whisky was delivered to the witness by the defendant, and it would not be delivered until it was separated from tbe other whisky, if it was in bulk.” It is alleged that this charge was error because-it does not contain all the elements of a sale, — that is, identification of the thing sold, agreement as to the price to be paid, and consent of the parties, and does not apply to the facts of the case,, and is misleading, and fails to set out a contract of sale.
Brown & Brown, for plaintiff in error.
0. H. B. Bloodworth, solicitor-general, contra.