
    32966.
    PHILLIPS v. THE STATE.
    Submitted November 11, 1977
    Decided January 3, 1978.
    
      Crumbley & Craig, R. Alex Crumbley, for appellant. 
      E. Byron Smith, District Attorney, for appellee.
   Per curiam.

Applicant was indicted on three counts of "loitering on [sic] premises of a public school,” "not having a legitimate cause or need to be present thereon.” We granted an interlocutory appeal based on the asserted unconstitutionality of Code Ann. § 32-9925, which makes loitering on the premises of a public school "unlawful.”

Ga. L. 1973, pp. 719, 720 (Code Ann. §§ 32-9925, 32-9926) provides that it is unlawful for a person to loiter on the premises of a public school without a legitimate need to be there. If the person is then told by a school official to leave the premises, but does not do so, then the person is guilty of a misdemeanor.

The crime has two elements: (1) loitering on the premises of a public or private school without a legitimate need to be there and (2) refusal to leave after being told to do so by a school official. Since appellant’s indictment does not allege he remained on the campus after being told to leave, an essential element of the offense is omitted and the trial court erred in overruling the demurrer to the indictment.

Having found the indictment to be defective, we do not reach the constitutional issue.

Judgment reversed.

All the Justices concur.

Arthur K. Bolton, Attorney General, Harrison Kohler, Assistant Attorney General, amicus curiae.  