
    Augustine Legori vs. The State of Mississippi.
    L. was indicted for retailing vinous and spirituous liquors in less quantities than a gallon within the city of Yicksburg without a license; it was proved that he sold the prohibited article in less quantities than a gallon at a place four miles out of and from the city, and upon that proof he was found guilty as charged in the indictment: Held, that under the statute of 1842, which appropriates all moneys accruing from the granting of licenses to retail, and-from fines for a violation of the statute committed within the city of Yieks-burg, to that city, the particular place where the offence was alleged to have been committed, became a fact and circumstance constituting the offence, and it was incumbent on the state to prove it as charged in the indictment.
    EitRORTErom the circuit court of Warren county; Hon. George Coulter, judge.
    At the April term 1845 of the eircuit court of Warren county, the grand jury found an indictment against Augustine Legori, for selling vinous ■ and spiritous liquors in less quantities than one gallon, without a license. The indictment charged that the defendant, on the 1st day of September, 1844, “ with force and arms, at Yicksburg, in the county aforesaid, unlawfully did sell, &c.” The defendant pleaded not guilty. On the trial the state proved by Charles H. Yinton that the defendant, in the summer of 1844, at the race track, four miles from and out of the city of Yicksburg, in the county of Warren, sold whiskey by the drink. This was the only evidence offered by the state. The defendant therefore moved the court to rule out the testimony as insufficient to sustain the charge in the indictment, which motion the court overruled and decided the testimony to be admissible and competent. To which decision defendant excepted. The defendant was found guilty by the jury. He then moved the court for a new trial, for the following reasons. “ Beeause, 1st. the verdict was contrary to law and evidence. 2d. Because the court erred in refusing to rule out the testimony of Charles H. Yinton, the only witness for the state, as insufficient to sustain the indictment.” The court overruled the motion, and the defendant excepted to the opinion and decision of the court overruling his motion, and the cause is brought into this court by writ of error.
    
      Guión and Tompkins, for plaintiff in error.
    The only question presented by the record for the consideration of this court is this: Was it necessary to establish by evidence the allegation of the indictment, that the defendant sold the liquor “ at Yicksburg,” or in other words was evidence of his -having sold liquor in Warren county, four miles from and out of the city of Yicksburg sufficient to sustain the allegation of the indictment that the offence was committed “ at Yicks-burg 1”
    The statute prohibiting the sale of vinous and spirituous liquors, in less quantities than one gallon, appropriates to the city of Yicksburg, for the use of a hospital, all fines and forfeitures accruing from a breach of its provisions within the limits of said city. See Acts of the Legislature of 1842, page 109. The act to regulate the mode of obtaining license to sell,.&c. sec. 2.
    In cases in which a statute gives the pecuniary penalty for an offence to any particular district or parish, the indictment must charge the offence to have been committed within the particular district or parish, and the proof must correspond with the averment. Stephens’ Crim. Law, 154; Archbold’s Crim. Pleading, 40, 96 ; Barbour’s Crim. Treatise, 355.
    
      John D. Freeman, attorney-general, for the state.
    This is an indictment under the gallon law for selling liquor without license “ in the city of Vicksburg.” The evidence is, that defendant sold liquor at the race-track, four miles from the city of Yicksburg. Had the indictment charged defendant with selling in the county of Warren, the evidence would have sustained the indictment; but inasmuch as the indictment charges a sale in the city of Yicksburg, it is believed that selling four miles from Yicksburg does not sustain the indictment %
    
   Mr. Justice Thachek

delivered the opinion of the court.

This is an indictment for retailing vinous and spirituous liquors in less quantities than a gallon, within the city of Vicksburg, and without a license.

The proof upon the trial was, that the defendant below retailed the prohibited article in less quantity than a gallon at a place four miles out of and from the city of Vicksburg,” and upon this proof the jury found a verdict of guilty as charged in the indictment.

The statute of 1842, amendatory of the statute of 1839, for the suppression of tippling houses, and to discourage and prevent the odious vice of drunkenness,” sec. 2, appropriates all moneys accruing from the granting of licenses to retail, and from fines for a violation of the statute, committed within the city of Vicksburg, to that city.

Under this provision of the foregoing statute, the particular place where the offence was alleged to have been committed* became a fact and circumstance constituting the offence, and made it incumbent upon the state to prove it as stated in the indictment.

Judgment reversed and new trial granted.  