Ward

The plaintiffs in error, together with one Hoffman, were tried upon an information in three counts, which charged them with the possession of intoxicating liquors, the sale of intoxicating liquors, and the maintenance of a nuisance. Furihata and Hoffman were found guilty on all three counts. Ward was found guilty on the second count, and was found not guilty on the first and third counts.

Ward contends that the acquittal of the charge of the possession of liquor, being inconsistent with the verdict of guilty on the charge of selling the same liquor, is tantamount to an acquittal of the latter charge. We do not think the conclusion follows. In view of the evidence in the case, the jury might have found that, while Ward was not in possession of the liquor, which was sold in the particular instance disclosed by the evidence, yet that ho aided and abetted and participated therein.

But we think a now trial should be ordered as to Ward on account of an instruction of the court to the jury, to which he duly excepted. The instruction was: “If the defendant Ward is guilty in this case, it is npon what he did that day, his conduct in operating the elevator, his relation to the transaction…