delivered the opinion of the court.
The indictment is based solely on the ground that the defendant “did unlawfully sell and retail intoxicating liquors without license.” When this trial was had (August, 1906) it was well settled that the defendant had the right to demand that the court
The court below was right in overruling the motion to exclude the state’s evidence because of variance between allegations of the indictment and the proof. One who aids and abets in the commission of a misdemeanor is indictable as a principal, and there was evidence tending to show such aiding and abetting. Beck v. State, 69 Miss., 217 (s.c., 13 South. Rep., 835) ; Wynn v. State, 63 Miss., 260.
Kittrell kept, in the building in which the liquor was said to have been sold, a general mercantile business, and was there only about once a week; he having another business six miles away, where he chiefly was. The sales were by a negro, who, Kittrell says, had nothing to do with the store, and that he (Kittrell) had no knowledge of any sale; and so, under the evidence for defense, which it was for the jury to consider, it was error to give the first charge for the state. That required conviction if the negro was permitted to sell by agents or clerks, even without the knowledge of Kittrell. If this be the law, any citizen may be criminally guilty, where a servant makes a furtive sale of liquor. '
Reversed and remanded.