BYBD, J.
1. The witness Peyton proved no fact tending to show that the prisoner sold any spirituous liquors in violation of law. His evidence, at most, tended to show that the accused had such liquors in his store, and that his wife was his clerk; and such evidence was admissible. For, if his wife was his clerk, and was authorized by him to sell *63liquor in less quantities than a quart, he having no license, then the accused would have been guilty, if his wife, by virtue of his authority, had violated the law; and it is not essential that he should be present at the time of the sale. The court properly admitted the evidence of Peyton, and afterwards admitted the witness Grady to testify to the facts he did. The cases of Elam v. The State, (26 Ala.,) and Cochran v. The State, (30 Ala.,) are not in conflict with the ruling of the court below on this question.
2. The charge of the court is too broad. The mere fact that the wife was the clerk of the accused, and her violation of the law, did not authorize the jury to find the prisoner guilty. The jury should have been satisfied from the evidence, beyond a reasonable doubt, that the liquor was sold by the authority of the accused, in order to convict him. The evidence, all of which is set out in the record, did not authorize the court to give the charge therein set out. A principal is not liable criminally for the unlawful act of his agent or clerk, unless he participated in the act, or consented to it; and this participation or consent can not be presumed by the court or jury merely from the fact that the seller was the clerk of the accused.
Let the judgment be reversed, and the cause remanded, on the authority of Patterson v. The State, 21 Ala. 571" court="Ala." date_filed="1852-06-15" href="https://app.midpage.ai/document/patterson-v-state-6504925?utm_source=webapp" opinion_id="6504925">21 Ala. 571; and Nall v. The State, 34 Ala. 262" court="Ala." date_filed="1859-06-15" href="https://app.midpage.ai/document/nall-v-state-6506504?utm_source=webapp" opinion_id="6506504">34 Ala. 262.