The State v. Neal, 27 N.H. 131

Woods, J. Instructions to the jury refer to the evidence before them, and are to be interpreted by it. Here, there was evidence of a partnership.

But, as if that alone were insufficient to implicate the respondent in the acts of his partner, Fales, the jury were told that if the spirits were sold in pursuance of an understanding, which means an agreement, between the two, that they should be so sold, and the sale was not upon the account and for the benefit of Fales only, but the respondent also had an interest in the sale, then Fales was an agent and an instrument of the respondent, in the perpetration of the illegal act, so as to involve him perfectly in the guilt of it.

The case is not one of assent to an unlawful act, but of procurement; and upon the instructions of the court, the jury must have found that the defendant procured and instigated the witness to perform the overt act, contrived by the two, against the law, and in the fruits of which both participated. It is difficult to see how the defendant can found an exception to such instructions. We discover no ground upon which it can avail him. Judgment on the verdict.