
    DuBois v. The State.
    
      Indictment for Selling Liquor in Prohibition District.
    
    1. Sale of liquor; purchase for another. — -A conviction can not be had for an illegal sale of liquor within a district in which a general prohibitory law is of force, on proof that the defendant bought a quart of liquor outsidejof the district, at the request oí a third person, and delivered it to him within the district, on repayment of the money which he had advanced for it.
    From the Circuit Court of Tallapoosa.
    Tried before the Hon. James R. Dowdell.
    The indictment in this case charged that the defendant, Barney DuBois, “sold vinous or spirituous liquor, without a license, and contrary to law.” On the trial, as appears from the bill of exceptions, the prosecutio'n proved by one Mace “that he saw the defendant sell to one J. B. Thayer three pints of whiskey, for which said Thayer paid him $1.50; and that this occurred in said county, within a half-mile of Tallassee Factory, within twelve months before the finding of the indictment.” The prosecution offered in evidence, also, the act of the General Assembly incorporating the Tallassee Factory, which prohibits the sale of spirituous liquors within four miles of the company’s factories.' — Sess. Acts 1851-2, p. 262. The defendant then testified in his own behalf, “and stated that, on the day before the alleged sale to Thayer, he was hired by Buckner & Son to go to Sentell’s bar-room, which was more than four miles from Tallassee Factory, and purchase for them two quarts of whiskey; that he met said Thayer on his way, who asked him to get three pints of whiskey for him, and said that he would pay when he came for it next morning; that he (defendant) then went to said bar-room, and bought one gallon of whiskey, which was put in a jug, and for which he paid $4.00 out of his own money; that he let Buckner & Son have two quarts of whiskey out of this jug, and let said Thayer have three pints, for which Thayer paid him $1.50, the same price which he had paid.” This being all the evidence, the court charged the jury, on request of the solicitor, “that they must find the defendant guilty, if they believed the evidence;” to which charge the defendant excepted.
    Jno. A. Terrell, for appellant,
    cited Morgan v. State, 81 Ala. 72; Campbell v. State, 79 Ala. 271; Young v. State, 58 Ala. 358.
    W. L. Martin, Attorney-General, for the State.
   STONE, C. J.

If the testimony of the defendant be true, he neither sold, nor aided in selling the liquor to Thayer. He purchased it for Thayer, at a point which is shown to have been without the prohibited district. He was not interested in the sale, and in no sense was he the agent of the seller. . He was agent of Thayer, the buyer, and did not assume to represent the seller. He advanced the money, not buying for his own use, but as an accommodation loan to Thayer, the purchaser. He made no profit, but received back only the money he had paid out for the liquor. If this testimony be true, the defendant is not guilty.—Young v. State, 58 Ala. 358; Campbell v. State, 79 Ala. 271; Morgan v. State, 81 Ala. 72.

Eeversed and remanded.  