
    Commonwealth v. Fugate.
    1849. December Term.
    
    Coffee, sugar and molasses purchased out of the Commonwealth, with proceeds of cord wood, cut by the purchaser, and brought into the State, cannot be sold without a license.
    At the June term 1848, of the County court of Mason county, William Fugate was indicted for selling by retail, goods, wares and merchandize, of foreign growth and manufacture, without having paid the tax required by law.
    On the trial of the cause it appeared in evidence, that previous to .Tune 1848, the defendant lived upon the land of one Coon, in the county of Mason ; and chopped and carried to the City of Cincinnati, in the State of Ohio, cord word, which he there sold for 50 dollars in cash. That on his return from thence, he brought with him on board the steamboat on which he came up the river, some coffee, sugar and molasses. That he sold to a person who was working for him at the time, some of this coffee on two occasions, and also some of the sugar. And some of the defendant’s neighbours got coffee and sugar from him.
    After the evidence had been offered, the attorney for the Commonwealth moved the Court to give five several instructions to the jury; and the Court gave the first, third and fourth, but refused to give the second and fifth. The defendant also asked for an instruction which was given. To the refusal of the Court to give the instructions asked for by him, and to the giving the instruction asked for by the defendant, the attorney for the Commonwealth excepted. It is only necessary, however, to state the fifth instruction, which was as follows, viz : That under the facts and circumstances of this case, in point of law the defendant was neither excused or justified in selling the articles as mentioned in ( the evidence, without having a merchant’s license.
    There was a verdict and judgment for the defendant; and the cause was, upon the application of the attorney for the Commonwealth, carried by writ of error to the Circuit court of Wood county.
    When the case came on to be heard in the Circuit court, that' Court, with the assent of the attorney for the Commonwealth, and the defendant, adjourned to this Court five questions, of which the fourth and fifth were as follows, viz :
    4th. Ought the Court to have given the fifth instruction asked by the attorney for the Commonwealth, and which was refused by the County court?
    5th. What judgment ought to be given on the whole record in this case?
   Field, J.

delivered the opinion of the Court.

The Court is unanimous in the opinion, that the County court should have given to the jury the fifth instruction: And that the judgment of the County court for the refusal to give that instruction should be reversed, with costs; and the cause be remanded to the County court for a new trial to be had therein: Upon which trial, if the same facts are proved, and the instruction is asked for again, it is to be given. Which is ordered to be certified to the Circuit court, in answer to the fourth and fifth questions adjourned.

The Court deems it unnecessary to respond to the other questions adjourned.  