#### The City of Anna v. Ed. Leird.

Intoxicating Liquors—Sale—Question for the Jury.

In a suit by a city to recover the penalty for selling intoxicating liquors, this court declines to interfere with a verdict for defendant.

[Opinion filed June 13, 1890.]

Appeal from the Circuit Court of Union County; the Hon. Robt. W. McCartney, Judge, presiding.

Mr. H. F. Bussey, City Attorney, for appellant.

Mr. W. C. Moreland, for appellee.

Green, J.

This suit was commenced before a justice of the peace to recover from defendant the penalty for an alleged violation of a city ordinance. The jury on the trial found defendant not guilty, and the city appealed to the Circuit Court, where the cause was again tried with a like result, whereupon the city took this appeal.

The violation charged is, that defendant sold intoxicating liquor, to wit, intoxicating cider, within the corporate limits of said city, without a license or permit from the city eoun*50cil. The character of the cider sold by the defendant was a question of fact to be determined by the jury from the evidence. They found it was not intoxicating, and sufficient evidence appears to warrant such finding. The evidence was conflicting upon this material question; it was the province of the jury who saw and heard the witnesses while testifying, and who were the judges of the credibility and weight of the testimony, to settle this conflict, which they did, and found for the defendant. We do not feel authorized to disturb the verdict. The first instruction given the jury on behalf of defendant was not proper, but we can not say, in view of the whole series of instructions given, .the jury were misled or the error in giving said first instruction is sufficient to require a reversal of the judgment.

The judgment is affirmed.

Judgment affirmed.