We see no sufficient cause for interfering with the verdict returned by the jury. It is certainly necessary in every indictment to state a day certain as the time when the offence charged against the accused was committed; but it need never be proved as laid, except in cases where time constitutes one of its essential or material elements. In this case it did not. The evidence therefore adduced in behalf of the Commonwealth was properly admitted, though it tended to prove sales of liquor by the defendant' on other days than those mentioned in the indictment.

The testimony of Smith, from which the evidence in support of the second count was derived, was' very properly left by the court to the consideration of the jury, whose peculiar duty it was to judge of its weight and bearing upon the question in issue. The law does not determine its effect, nor prescribe any rule of presumption in relation to it; and therefore the instructions, asked for by the defendant in relation to it, were not such as were adapted to the circumstances proved in the case, or proper to be given to the jury for their direction.

It is unnecessary to consider, or to remark upon, the power of this court to set aside a verdict, which has been rendered upon a trial in the court of common pleas, upon the ground that it was against the evidence or weight of evidence submitted to the jury; because,upon the facts stated in the bill of exceptions, there seems to be no good reason for supposing that the jury were at all incorrect in the conclusion they deduced in the present case from the evidence laid before them. The indictment *486alleged a sale of intoxicating liquor by the defendant to Cor« nelius E. Maloney. Smith, being produced as a witness on the part of the Commonwealth, testified to facts tending to show a sale of liquor to a person whom he called Dr. Maloney. The jury were satisfied that this testimony supported the allegation in the indictment. And we do not see why it did not. It is not even now pretended that Cornelius E. Maloney is not well known as Dr. Maloney, or that there exist two persons by the name of Maloney, to which the different descriptions might apply. There is certainly no inconsistency between the evidence produced and the fact established by the verdict; and it is only where such inconsistency can be shown to exist, that a verdict should be set aside as being unwarranted by the evidence.

Exceptions and motion for new trial overruled.