ITenry A. Kline was indicted for prosecuting secular business on Sunday, contrary to the statute in this : “ That on the 7th day of February, A. D. 1869, the same being Sunday, he did sell and dispose of goods and chattels, to-wit: one can of oysters,” etc.
The .defendant demurred on the ground that the indictment did not charge him with any offense. Eev. Oode, 607? art. 226, is as follows : “No merchant,” etc., “or other person, except apothecaries and druggists, shall keep open store, or dispose of any wares,” etc., “on Sunday, or sell or barter the same.”
We find the general rule, stated in several cases, in this *320language-: “ Indictments on statutes must state all the circumstances, which constitute the definition of the offense in the act; they must pursue the precise technical language employed in the statute in defining the offense.” Ainsworth v. State, 5 How., 242; Anthony v. State, 13 S. & M., 263; Ike v. State, 23 Miss., 525; Williams v. State [not yet reported].
Perhaps the language of the court is a little too broad and general as laying clown an invariable rule. Rev. Code, 573, art. 7, supplies a rule of absolute force : “ Merely formal and technical words shall not be deemed necessary (in indictments), so the offense be certainly and substantially described therein.”
While it is the better and safer practice to follow approved precedents, and to adhere closely and precisely to the statutory description of offenses, nevertheless the indictment would be good, “ so the offense be certainly and substantially described therein,” although, there be absent from it words “ merely formal and technical.”
The precise descriptive language of the statute need not be used if other equivalent words are employed, which describe the offense “ certainly and substantially.”
■ This indictment is fatally defective in omitting to negative the exception contained in the statute. The rule is, this: Where the enacting clause of the statute describes the offense with certain exceptions, it is necessary to state all the circumstances that constitute the offense, and to negative the exceptions, but where there are exceptions and provisos, contained in separate clauses of the statute, they must be omitted, and the defendant must show that he comes within the exception or proviso. Reynolds v. State, 2 Nott & McCord, 365; State v. Godfrey, 24 Maine, 232; State v. Glyn, 34 N. H., 422; Rex. v. Palmer, 1 Leach, 102.
•A statute prohibited “ all labor, business or employment on Sunday, except works of necessity and charity.” An indictment not negativing the exception was held to be bad. State v. Baker, 18 Ver., 195. So, where a statute prohibited the unlicensed sale of liquors, “ except in corporate towns *321and cities,” an indictment omitting to negative the exception was defective. Elkinson v. State, 18 Ga., 435; Howe v. State, 10 Ind., 423.
Before a decision was made on the demurrer, the district attorney, with leave of the court, amended the indictment by inserting the words, not being a “ druggist or apothecary,” and another formal change, to which exception was taken. And that presents the question, whether such change could be made. .
In McGuire v. State, 35 Miss., it was held to be error to change the indictment by correcting the Christian name of the accused — that being as it was said, a material amendment. That case occurred, however, before the adoption of the Revised Code of 1857.
Rev. Code, 615, art. 257, “The indictment may, with consent of the grand jury or of the court, be amended at any time during the term of court at which it was found, or afterwards by the consent of defendant, with permission of the court.”
The indictment was found 12th of August, 1869, and the amendment was made July 4th, 1870, which was a subsequent term. 617, Art. 268. After objection has been made by demurrer or motion to quash for any formal defect, the court may, if thought necessary, cause the indictment to be forthwith amended, and thereupon the trial shall forthwith proceed. If the objection taken to this indictment were merely “ formal,” the court had authority to order the amendment. But we have shown that the omission to negative the exception in the statute, in favor of “ druggists and apothecaries,” was a fatal defect; and power is not conferred on the court by this article to make other than “ formal ” amendments^ Art. 268 refers to sundry defects, disclosed during the progress of the trial, which may be amended. This article applies to a variance between the allegations of the indictment and the testimony, and empowers the court to order amendments, so as to make the allegata correspond with the probata. T1 .e action of the circuit court cannot be brought within this provision.
*322There was error, therefore, in. permitting the amendments, and the respondent, plaintiff in error, was improperly convicted. The judgment of the circuit court is reversed, the indictment quashed, and cause remanded.