1. Section 416 of the Penal Code of 1910 provides that “Any person who shall pursue his business, or the work of his ordinary calling, on the Lord’s day, works of necessity or charity only excepted, shall be guilty of a misdemeanor.” “It is, in every prosecution based upon the above-cited section of the code, incumbent on the State to allege and prove that the acts done by the accused in the course of his ordinary calling were not works of necessity or charity.” (Italics ours). Arnheiter v. State, 115 Ga. 572, 573 (41 S. E. 989, 58 L. R. A. 392).
2. Under the above-stated ruling the indictment in the instant case was subject to the demurrer interposed and the trial court erred in overruling the demurrer.
Judgment reversed.
Luhe and Bloodworth, JJ., concur. Aldime & Hewitt W. Chambers, for plaintiff in error. William H. Reynolds, solicitor, contra.