BEFORE HAWKINS, P.J., DAN LEE AND GRIFFIN, JJ.
DAN LEE, JUSTICE, FOR THE COURT:
James E. Martin was indicted, on September 13, 1983, for the crime of having" wilfully, unlawfully and feloniously manufacture[d] and distill[ed] a quantity of wine, an intoxicating liquor, which if drunk to excess, will produce intoxication, for the purpose of selling the same. "He was tried in the Circuit Court of Itawamba County, and found guilty. The trial court, on July 20, 1984, sentenced him to three years' imprisonment, with the three years suspended, and put him on unsupervised probation. Martin was also ordered to pay a fine of $750.00 and the costs of court. He appeals, assigning the following as error.
The indictment charged no offense and the proof showed none.
Martin's conviction was prohibited by the" Void for Vagueness doctrine of United States Constitution Amendment Fourteen.
Finding that Martin's contentions have merit, we reverse his conviction and sentence.
The facts of this case are largely undisputed. Martin and his mother had started a vineyard about three or four
years before his arrest, on his mother's land. As they were both disabled, they looked upon the venture as something to fill their time, with the possibility of someday going into the business of selling wine. The muscadine vineyard was no secret: Martin got technical advice from Mississippi State University horticulturists and enologists, and legal advice from local attorneys and government officials. All of the people who gave Martin legal advice told him that it was within the law to manufacture muscadine wine in Itawamba County, even though the county is dry, apparently being convinced that the Native Wine Act superseded any law on prohibition.
Sheriff Willis Leland Taylor knew for about three years that Martin was making wine. On July 29, 1983, he sent his stepson and Special Deputy, Ben Summerford, out to Martin's place to purchase some of it. Summerford purchased a gallon of wine from Martin for $10.00. On August 18, Summerford returned to the Martin place for another gallon of wine, which he also purchased for $10.00. On the 19th of August, Sheriff Taylor returned to the Martin place with a warrant, seized all of Martin's winemaking equipment, and poured out approximately 900 gallons of wine, and juice being processed into wine.
Prior to trial, Martin moved to dismiss the indictment against him, on the grounds that it did not comply with the language of the statute on which it was based. Both the Affidavit for Search Warrant and the Search Warrant itself allege a violation of Miss. Code Ann. 97-31-21 (1972), as amended. That statute states, in pertinent part:
It shall be unlawful for any person, firm or corporation to manufacture, or distill any vinous, malt, spiritous, or intoxicating liquor or drink which if drunk to excess will produce intoxication. But this statute shall not prohibit citizens of this state from making wine from grapes or berries grown in this state, at their respective homes and using and consuming the same in the home where made, by the family residing therein and dispensing same to guests within said home.
The indictment stated that Martin "did wilfully, unlawfully and feloniously manufacture and distill a quantity of wine, an intoxicating liquor, which if drunk to excess, will produce ...