
    Alexander McAlister v. City of Moss Point.
    [51 South. 403.]
    Municipalities. Offenses. Violation of ordinance. Affidavit. Venue.
    
    In a prosecution before a municipal court, an affidavit purporting to charge an offense is fatally defective if it fail to aver:—
    
      (а) The violation of a municipal ordinance; or
    (б) That the offense was committed within the limits of the municipality.
    From: tbe circuit court of Jackson county.
    Hon. William: H. Hardy, Judge.
    McAlister, appellant, was tried and convicted of violating .a municipal ordinance, prohibiting tbe sale of intoxicating liquors, was sentenced to a fine and imprisonment, and appealed to tbe supreme court. Tbe opinion of tbe court states tbe facts.
    
      J. H. Mize, for appellant.
    Tbe affidavit merely charges that tbe liquor was sold “in said county,” hence, tbe mayor bad no jurisdiction to try tbe case, it not being alleged that tbe sale occurred in tbe city of Moss Point. And, as tbe mayor bad no- jurisdiction, tbe ■circuit co-urt could have m> jurisdiction. Bishop’s New Grim. Proc. vol. 1, §§ 96, 124.
    
      Demyy & Denny, for appellee.
    Tbe record discloses that tbe appellant was tried in tbe mayor’s court and subsequently in the circuit court without any objection whatever by him as to tbe insufficiency of the allegations of tbe affidavit. The alleged defect is merely an imperfection in form. Tbe objection to tbe affidavit has been urged for tbe first time in opposing counsel’s brief in this court;
    
      Code 1906, § 1426, provides that an objection to an indictment for a defect appearing on the face thereof shall be taken by demurrer to the indictment, and not otherwise, before the issuance of the venire facias in capital cases, and before the jury shall be empaneled in all other cases, and not afterwards. The defect complained of by appellant in this case appeared upon the face of the affidavit and comes squarely within the provisions of said Code 1906, § 1426; Burnett v. 8bate, 72 Miss. 994; Smiih v. State, 58 Miss. 867.
    The place where the alleged offense was committed was not ■of the essence of the offense, for the reason that a sale anywhere in the county would be illegal. The appellant should, therefore, have made objection to the affidavit before the jury was impaneled. Code 1906, § 1354.
   SMITH, J.

'delivered the opinion of the court.

Appellant, having been convicted in the mayor’s court on a ■charge of unlawfully selling intoxicating liquors, appealed to the circuit court, and, being again convicted, appeals to this court.

The affidavit upon which he was tried is in the following language: “Before me, the undersigned authority, Geo. W. O’Neill, mayor of the city of Moss Point, comes P. D. McLeod, sheriff of Jackson county, who makes oath that Alex McAlister, on the 12th day of July, 1909, in said county, did unlawfully sell to Enos Miller and other persons vinous, spirituous, alcoholic, malt, or intoxicating liquors, contrary to1 the statute and against the peace and dignity of the state of Mississippi.” ^

This affidavit is fatally defective for two reasons. It does not charge the violation of any municipal ordinance, and does not charge that the alleged crime was committed within the corporate limits of the city of Moss Point. The mayor, and consequently the circuit court, was therefore without jurisdiction to try tbe cause, and tbe judgments and convictions were mere nullities. Washington v. State, 93 Miss. 270, 46 South. 539.

Tbe judgment of tbe court below is reversed, and appellant discharged. Reversed.  