
    S. B. Ragan and C. A. Campbell v. The State.
    Criminal Law. Liquors, sale of. Indictment. Place; essence of offense.
    
    Under the special act of February 1, 1888 (Laws 1888, p. 626), prohibiting the sale of liquors “ at or within three miles of Providence College,” in the county of Lee, place is of the essence of the offense, and an indictment which merely alleges a sale “ at Nettleton, in violation of said act,” is fatally defective and cannot be cured by proof that Nettleton is within three miles of the said college.
    From the circuit court of Monroe county.
    Hon. Lock E. Houston, Judge.
    The appellants, Eagan and Campbell, were indicted for selling malt liquors at the town of Nettleton, in Monroe county, in violation of a special statute, approved February 1, 1888, entitled “an act to incorporate Providence College, in Lee county, and for other purposes.” This act makes it a misdemeanor to sell liquors within three miles of said college. There is no allegation in the indictment that Nettleton is within three miles of the college; but the agreed statement of facts is, that the appellants did sell malt liquors in the town of Nettleton, which is less than three miles distant from Providence College.
    The court overruled defendants’ motion to quash the indictment, and upon the agreed facts instructed the jury to find the defendants guilty.
    Apart from the objection to the indictment, the defense on the merits is placed on the fact that the charter of Nettleton, approved after the enactment of the aforesaid statute incorporating the college, made provision, under certain conditions, for the sale of liquors within the town, and that defendants had complied with .these conditions and obtained license to sell. Although the argument of counsel is addressed to this point, the opinion is limited to a consideration of the face of the indictment and motion to quash.
    
      J. L. Finley, for appellants.
    
      T. M. Miller, attorney-general, for the state.
   Cooper, J.,

delivered tbe opinion of the court.

The indictment is fatally defective, and should have been quashed upon the motion of the defendants. It charges no offense. Its averments are that the defendants on the 22d day of April, 1889, did, “unlawfully sell malt liquors at Nettleton, in violation of an act of the legislature, approved February 1st, 1888, entitled an act to incorporate Providence College, in Lee county, and for other purposes.”

Looking to the act referred to, it appears that it is not thereby made unlawful to sell such liquors at Nettleton. The prohibition is against the sale of such liquors “at or within three miles of Providence College, situated in the county of Lee, and in the state of Mississippi.” Place is made of the essence of the offense, and, being so, it is necessary to be alleged. Bishop on Crim. Pro. § 372, and authorities in note.

Judgment reversed and indictment quashed.  