
    WHEELING.
    State v. Miller.
    Submitted June 23, 1885.
    Decided June 27, 1885.
    1. While it is the usual practice, where a jury is waived, and the case submitted to the court in lieu of a jury, if the party, against whom the judgment is rendered, is dissatisfied therewith, to except to the judgment and have the court certify the facts proved, yet it is not necessary for the record to show, that the judgment was excepted to. It is sufficient, if the facts appear upon the record either by the certificate of the court or otherwise, (p. 100.)
    2. In such a case upon review in the appellate court the case will be regarded as on demurrer to evidence, and the plaintiif in error the demurrant, (p. 109.)
    3. A ease reversed because the facts proved are plainly insufficient to warrant the judgment; the defendant having been indicted for selling spirituous liquors, &e., and the proof showing that he was a purchaser not a seller. ■ (p. 110.)
    4. Upon review of a ease tried by the court in lieu of a jury, if the evidence was plainly insufficient to warrant the judgment, the appellate court will reverse the judgment and render judgment for defendant, (p. 110.)
    Tlie facts of tlio case appear in the opinion of the Court:
    
      Kama $ Chilton for plaintiff in error.
    
      Alfred Caldioell, Attorney General, for the State.
   Johnson, President:

The defendant, Miller, was indicted in the circuit court of Logan comity for selling spirituous liquors, &c. without license.

On the 5th day of July, 1883, the case was heard before the court in lieu of a'jury, and the court on the issue joined on the plea of not guilty found the defendant guilty and assessed a fine of $10.00 against him. The record states : “Thereupon the defendant by his attorney moved the court to set aside the verdict and grant him a new trial, because the same is contrary to the law and the evidence and is insufficient to warrant said finding,” which motion the court overruled, to which ruling of the court the defendant excepts, and tenders his bill of exceptions, &c. Then follows the bill of exceptions, which certifies the evidence. The whole evidence for the State is as follows: “The State to maintain the issue on her part introduced one If. M. Aldridge, as a witness and proved the following facts: That witness, Dr. Wal-dron, JE. Gibson, and defendant were together in a room at Logan 0. IL, Logan county; that Dr. "Waldron wanted some whisky and asked witness Aldridge to go and get some for him; that witness asked Miller if he knew where whisky could be got, and defendant told witness that he thought he could get some from one J. B. Buskirk; that witness went out of the room and was gone some time, and then returned and said he could get none; that defendant then at the request oí Dr. Waldron, took the bottle and money (fifty cents) and went away and after a little while returned with a pint of whisky and gave it to Dr. Waldron, which the party drank; that this occurred within the county of Logan, and within one year previous to the finding of the indictment”; .and here the State rested the case.

Why the defendant thought it necessary to introduce any ¡evidence is hard to understand, hut he did. lie was himself ! sworn and stated how and where he got the whisky. He said he took the bottle and money and went to the shed of Buskirk’s barn, saw a colored man there; laid the bottle and money down on the head of a barrel under the shed, and went away, and in a short time went back, and found the bottle filled with whisky lying on the head of the barrel and the money gone; he took the whisky to Dr. Waldron, and the party drank it; that he did not know, who filled the bottle; that he was told by George Steele that he could got whisky by leaving his money and bottle there; had no arrangement or understanding with any one about selling said whisky; was interested in no way in selling said whisky; got the same for Dr. Waldron at his request; that he had several times, after said Steele had given him the information, got whisky at the same place in the same way.

J. B. Buskirk was sworn as a witness for defendant and said, that at no time did defendant ever have any understanding or arrangement with witness to aid or assist him in selling whisky.

The bill of exceptions states : “And these being all the facts proved by both the State and the defendant, the court found the defendant guilty and assessed his fine at $10.00; and thereupon the defendant moved the court to set aside the said verdict as being contrary to the law and the evidence, which motion the court overruled and proceeded to render judgment on said verdict, to which ruling of the court in finding the defendant guilty, and refusing to set aside said finding the defendant excepts, &c.”

To the judgment of the court the defendant obtained a writ of error.

It is here contended by the Attorney-General, that, inasmuch as the case was tried by the court without a jury, the defendant waived all objections to the judgment by failing to except thereto, and by failing to move to set it aside. Because the case was tried by the court in lieu of a jury, it was unnessary to except to the judgment or move to set it aside. "While it is the usual practice in cases, where a jury is waived and the ease submitted to the court in lieu of a jury., if the party, against whom the judgment is rendered, is dissatisfied therewith, to except to the judgment and have the court certify the facts proved, yet it is not necessary for the record to show that the judgment was excepted to. It is sufficient, if the facts appear upon the record by certificate of the court or otherwise. In such case this court will inspect the record and either affirm or reverse the judgment, as the law requires. It seems to be a useless formality to except to the judgment of a court in such a case. An exception might as well be taken to a decree in chancery. (Beard, &c. v. Parsons, 24 W. Va. 551.) Here the facts were all certified by the court and thus made a part of the record.

It is well settled, that upon a review of a judgment of the court in a case submitted to the court in lieu of a jury it will be by the appellate courtregarded as upon a demurrerto evidence, "considering the plaintiff in error as the demurrant. (Id.)

Upon the well established principles of a demurrer to. evidence what evidence is there in this record that the defendant sold spirituous liquors, &c. ? There'is abundant evidence that he bought whisky as the agent of Dr. Waldron; but none whatever that he sold any either for himself or as the agent of another. It is argued by the Attorney General, and cases are cited to support the position, that a clerk or agent is responsible in case of a sale made by him, when his principal has no license. This position is sound; but the trouble is, there is not the slightest evidence of the fact, or any evidence of any other fact, from which the inference could have been drawn by the Court, that the defendant was the agent of any one for the sale of the liquor, which he procured for Dr. Waldron ; but the evidence was produced by the State that he was the agent of Dr. Waldron for the purchase of the whisky.

Under our statute a man can not be subjected to any penalty for the purchase of whisky or other intoxicants, but only for the sale thereof without license. It has been so held under the Massachusetts statute. (Commonwealth v. Willard, 22 Pick. 476.) As in the cases of the State v. Thomas, 13 W. Va. 847; State v. Haymond, 20 W. Va. 21, and State v. Ferrell, 22 W. Va. 759, the evidence is clearly insufficient to sustain the judgment of the court. In fact there is no evidence upon which the judgment can rest.

In a case like this, where the appellate court comes to the conclusion, that the judgment of the circuit court was plainly erroneous, it will not remand the case for a now trial, but will enter such judgment on the law and evidence, as the court below should have rendered. (Nutter v. Sydenstricker, 11 W. Va. 535.)

The judgment of the circuit court is reversed; and this Court proceeding to render such judgment as the circuit court should have rendered, judgment is rendered for the defendant.

Reversed.  