
    Weisbrodt v. State.
    
      Intoxicating liquors—Information charging unlawful use of, on election day—Sufficiency of.
    
    X. In an information charging a violation of the act making it an offense to keep open on election day a place where on other days, spirituous, vinous, or malt liquors are habitually sold and drank, it is not sufficient to describe the place as one “where intoxicating liquors were on other days habitually sold and drank.”
    2. It is not necessary to allege in such information the filing of an affidavit charging the offense.
    (Decided March 28, 1893.)
    Exceptions by the prosecuting attorney, to the judgment of the Court of Common Pleas of Brown county.
    
      D. V. Pearson, Prosecuting Attorney, for the exceptions.
    
      John H. Markley, contra.
   By the Court.

The record presents the question whether or not, in an information under section 6948 of the Revised Statutes, which makes it an offense to keep open on election day any place where on other days spirituous, vifious, or malt liquors are habitually sold and drank, it is sufficient to describe the place as one “where intoxicating liquors were on other days habitually sold and drank?” We answer the question in the negative. All spirituous, vinous, or malt liquors are intoxicating, but all intoxicating liquors are not necessarily either spirituous, vinous, or malt liquor.

It is argued that an information charging an offense under the above cited section should allege the filing of an affidavit charging the offense. We think not. The filing of such affidavit is a necessary pre-requisite to a presentation of the information, but no allegation of the fact is necessary in the information itself. If it be claimed that no affidavit has been filed, a motion to quash would reach and determine the question.

Exceptions overruled.  