The plaintiff in error was tried and convicted at the February term of the circuit court of Jackson county, *421871, on a charge of selling vinous and spirituous liquors without a license therefor. The errors assigned are : 1. That there was no finding and presentation of the indictment by the grand jury; 2. That the accused was not present by himself or counsel when the judgment was rendered; 3. In the exclusion of evidence offered by the plaintiff in error; 4. In the instructions given and refused. Diminution of the record was suggested, and in response to a certiorari the clerk of the proper court sent up an amended record, showing the legal organization of the grand jury at the term when the indictment in this case is supposed to have been found; but with a certificate, “ that there is no entry made of the presentment of the indictment in the case of the State v. Peter Pond preceding the arraignment and trial, on the minutes of said court at said term.”

The case is, therefore, as though there were never any indictment found. It is as though the parties, the state, and.the defendant, voluntarily appeared in' court and made up an issue, the state, by the district attorney, complaining of the said Peter Pond for unlawfully retailing vinous and spirituous liquors without a license, and the defendant entering a general denial. The jury having returned a verdict of guilty, judgment was rendered against the defendant for twenty-five dollars and costs. The violation of the statute was clearly made out by undisputed and uncontradicted evidence. The defence attempted to be relied on embraced the following propositions: 1. An exclusive authority in the corporation of Ocean Springs to grant a license of this character; 2. Payment of the privilege tax charged for such a license; 3. That it devolved upon the state to prove that the defendant had not a license from the town of Ocean Springs. The court correctly ruled these grounds of defence untenable. See Drysdale v. Pradat, tax collector, 45 Miss., for the reasons on the claim of exclusive right. . . .

*43A motion for a new trial was made on the grounds : 1. Of error in the instruction's given for the state; 2. For refusing instructions asked by defendant; 3. In rejecting the defence offered by defendant.

The instructions for the state were, in brief: 1. That if the jury believed the defendant had sold vinous and spirituous liquors in less quantity than one gallon without a license, he was guilty, as charged; and 2. That the burden of proving he had a license, devolved on the defendant.

The instructions asked for defendant were, in substance, 1. That if the jury believe the defendant sold vinous and spirituous liquors within the town of Ocean Springs, then it was not necessary for defendant to obtain a license from the board of supervisors; 2. That the authorities of Ocean Springs have the exclusive right to grant licenses, and unless it has been charged that the defendant had not a license from the corporation of Ocean Springs, he is not guilty; 3. That if the jury believe the defendant has paid for and obtained a license, he is not guilty; 4. That it devolves upon the state to prove that the defendant had not a license from the authorities of Ocean Springs; which instructions the court correctly declined to give.

Thus, it would seem, that the defect in the record was not discovered until its return to this court. W e see no error in the proceedings and trial, nor other objection to the record, except the defect certified by the clerk. If the statute were different, and the district attorney was authorized to institute a suit for the penalty, as in case of debt, thé record and judgment would be without fault. But the statute classes the sale of vinous and spirituous liquors without a license as a crime, to be prosecuted as such. As necessary constitutional and statutory preliminaries, there must be an indictment found by a legal grand jury of the county, and it must be presented in open court by the foreman of such *44grand jury, in the presence of at least twelve of such grand jurors. The indictment must be received by the court and marked filed by the clerk. The amended record shows: 1. A legal grand jury; 2. An indictment certified by the clerk to have been found by a grand jury of the proper county; 3. The certificate of the clerk that there is no evidence in his office of the presentation of the indictment in court; 4. Arraignment, issue, trial, verdict, and judgment.

So long as the constitution and laws remain unchanged in the respects indicated, they must be substantially observed in criminal proceedings, and a record failing to show the presentation in court by the grand jury of an indictment found by them, will be fatally defective, and cannot be sustained.

The judgment is reversed • and cause remanded, because of the omission in the record to show the presentation in court of the indictment by the grand jury.