delivered the opinion of the court.

The appellant, J ohnnie Mitchell, was indicted and convicted for selling intoxicating liquors and sentenced to pay a fine of one hundred dollars and serve ninety days-in the county jail, and, from said conviction, appeals.

The facts involved were that one E. C. Gerald and another, students in the United States Vocational Training School at Pascagoula, Miss., drove out to appellant’s place for the purpose of procuring some liquor. They paid the appellant for the liquor and requested him to divide it into two bottles. While the appellant was pouring the liquor from one bottle to another, a constable appeared upon the scene and, when appellant heard him coining, he said to the witness, “Give me the bottle,” and broke the bottle, spilling the liquor out and pouring water so as to disguise its nature. The constable came up and made some remark indicating that he thought they were destroying the evidence but did not make an arrest but proceeded on to some other point, whereupon the appellant returned the money paid him by Gerald. Neither the purchaser nor the principal tasted the liquor. The proof shows that the witness called for “shinny.” The constable testified however that he could smell the liquor, and it was whisky. Appellant was thereafter arrested and indicted and tried as above stated.

*444It was insisted that there was no sale because there was no delivery, and second, that there was no proof that it was intoxicating liquor. It is also claimed that the court committed error in granting the following instruction:

“The court instructs the jury for the state that, if they believe from the facts and circumstances in evidence in this case, beyond a reasonable doubt, that the defendant in district No. 2, Jackson county, Miss., on or about the 23d day of June, 1921, sold intoxicating liquor, to wit, ‘shinny,’ they should find the defendant guilty as charged, even though they do believe from the evidence that, after.the sale was made, the defendant took the bottle back, in his possession and destroyed the ‘shinny’ therein, and thereafter returned the purchase price of said liquor to the purchaser.”

It is s'aid that this instruction is erroneous, first, because it is misleading in that it instructs the jury that, if they believe from the facts and circumstances in evidence, etc., thereby assuming that certain facts had been proved, and also it is error because it told the jury that shinny is intoxicating liquor and third, that it assumes that a sale was made.

We do not believe these criticisms are well taken. The jury was instructed that if they believed from the facts and circumstances in evidence beyond a reasaonable doubt. The jury was authorized to consider facts as evidence, especially where, under the rules of circumstantial evidence, conclusion of guilt may be drawn from such facts. We do not think that, using the words, “to-wit, shinny,” in the above instruction is objectionable, because we think it is generally understood that ‘shinny’ is moonshine whisky and it would be no more objectionable to' say “intoxicating liquor, to-wit, shinny,” than it would be to say “intoxicating liquor, to-wit, whisky.”

We think the proof shows clearly that there was a delivery of intoxicating liquor and a payment of the money, and, after these facts existed, the bottle was returned to the appellant for a division of the liquor into two bottles *445instead of one, and the fact that he broke the bottle,- destroyed the liquor, and returned the purchase money did not operate as a pardon for the offense already committed.

The judgment will be affirmed.

Affirmed.