Appellant was convicted and sentenced in the circuit court of Simpson county on the charge of exhibiting a deadly weapon in a rude, angry, and threatening man-ner. Prom this judgment he appeals to this court.
The indictment charges that he, “on the - — —■ day of April, 1910, in Simpson county aforesaid, did wilfully and feloniously, in a quarrel, and not in necessary self-defense, exhibit a shotgun, a deadly weapon, in a rude, angry, and threatening manner, against the peace and dignity of the state of Mississippi.” Section 1110, Code 1906, under which this indictment was drawn, recites that “if any person having a deadly weapon shall, in the presence of three or more persons, exhibit the same in a rude, angry, or threatening manner, not in necessary *311self-defense,” etc. The motion in arrest of judgment, filed by appellant, in substance presented the question whether the indictment charges a criminal offense under section 1110, Code 1906. The motion was overruled by the court.
Manifestly the indictment should have contained the essential qualification that the exhibition of the deadly weapon must have been made “in the presence of three or more persons.” These words were left out of the indictment, and they were essential. To make a crime under this section, the exhibition of the deadly weapon in the presence of three or more persons is necessary, and this fact must be averred in the indictment. It is true, from the record in this case, that three or more persons were present when appellant exhibited the weapon in a rude, angry, and threatening manner, not in his necessary self-defense; but this does not supply the defect in the indictment.
We think the motion in arrest of judgment should have been sustained, and, for reasons above, we think the case should be reversed. Reversed.
Per Curiam.For reasons assigned by the Commissioner, the judgment of the court below is reversed, the indictment quashed, and appellant discharged.