
    Clarence KINDLE v. STATE of Mississippi.
    No. 44621.
    Supreme Court of Mississippi.
    Jan. 22, 1968.
    John H. Shands, Vaiden, for appellant.
    Joe T. Patterson, Atty. Gen., by Guy N. Rogers, Asst. Atty. Gen., Jackson, for ap-pellee.
   GILLESPIE, Presiding Justice.

Pursuant to Mississippi Code 1942 Annotated section 10224 (1953), the Board of Supervisors of Carroll County adopted an ordinance providing that “it shall hereafter he unlawful to sell, swap, barter or give away Beer or Wine at any place outside of incorporated Municipalities in Carroll County, State of Mississippi, between the hours of 11:00 P.M. on any Saturday nights and the following hours of 7:00 A. M. on Monday mornings.” This case originated in the justice of the peace court, was appealed and tried de novo in the circuit court. The affidavit charged that Clarence Kindle did “unlawfully sell, give away, or allow beer to be consumed on his premises” within the hours prohibited by the aforesaid ordinance. He was found guilty and fined $100.

In his appeal to this Court, Kindle raises several questions, one of which is based on the State’s instruction No. 1 which stated that if the jury believed from the evidence beyond a reasonable doubt that the defendant “did sell, give away, or permit to be consumed on Ms premises, beer on Sunday outside of a municipality,” etc., then it was the sworn duty of the jury to find a verdict of guilty.

Neither the statute authorizing the adoption of the ordinance nor the ordinance itself made it unlawful to “permit to be consumed on his premises, beer on Sunday.” Therefore, the instruction was fatally defective and the case must be reversed.

Kindle raises the issue whether he should have been granted a peremptory instruction, but after a careful review of the evidence, we are of the opinion that there was sufficient circumstantial evidence to make a jury issue.

The other questions raised by the appellant do not justify discussion.

■ Reversed and remanded.

PATTERSON, INZER, SMITH and ROBERTSON, JJ., concur.  