¶1The act of December 16th, 1851, entitled “ an act to regulate the sale of spirituous liquors in the town of Elyton”, is a law of a local nature, operating only in that • town and within two miles thereof; and is, therefore, expressly continued in force by section 10 of the Code.
¶2The provisions of this act, and the provisions of the Code upon the subject of retailing without a license, are inconsistent with each other, and cannot operate together within the same territorial limits. The effect of that section of the Code which continues this act in force, is, to except the town of Elyton, and the territory within two miles thereof, from the operation of the provisions of the Code against retailing without a license.
¶3That act created an offence, and prescribed its constituents, without reference to anything else. Pacts which would constitute this offence, would not constitute the offence of retailing without a license as defined by the Code. The penalty for a violation of the act, is not the same as the penalty for a violation of the provisions of the Code against retailing.
¶4An indictment authorized by section 1059 of the Code, for retailing, is not a proper indictment when the State proceeds only for a violation of the provisions of the act of 1851. ’ To justify a conviction upon proof merely of a violation of the provisions of the aforesaid act, the indictment must be framed in reference to the act, and must either conform to its letter or substance, or must state the facts which constitute the offence created by the act. — Stains v. The State, 21 Ala. R. 218 ; The State v. Brown, 4 Porter’s R. 410 ; Francois v. The State, 20 Ala. R. 88 ; 2 Waterman’s Arch. Cr. Pl. 86-2; 1 Hale, 517 to 535 ; 2 ib. 170; 2 East’s Rep. 333 ; 1 T. R. 141; 1 East’s Rep. 643 ; 15 ib. 456.
¶5The court below erred, in overruling the' motion of defend- . ant to exclude the evidence of the State, and also in refusing the charge asked by defendant; its judgment is, therefore, reversed, and the cause remanded.