
    Lewis Becker v. The State of Ohio.
    1st. In an indictment for a violation of tbe first section of the act of May 1st, 1854, “ to provide against the evils resulting from the sale of intoxicating liquors in the State of Ohio,” it is not necessary to a perfect description of the offense, as defined by the said first section, that the indictment should contain an averment that the liquor sold was not “ wine manufactured of the pure juice of the grape cultivated in the Slate of Ohio, or beer, ale, or cider,” as specified in the proviso at the end of the eighth section of said act.
    .2d. Said proviso forms no part of the description of the offense of violating said first section, being contained in a distinct section of the act fixing the penalty for such offense; and the benefits of said proviso must be taken advantage of by the accused in making his defense upon the facts.
    3d. This is in accordance with the rule laid down in Him v. The State, 1 Ohio State Rep. 24.
    
      This is a motion for a writ of error to reverse the judgment of the Court of Common Pleas of Miami county.
    In December, 1858, Becker was indicted in said court for a violation of the first section of the act of May 1st, 1854, “to provide against the evils resulting from the sale of intoxicating liquors in the State of Ohio.” Swan’s Rev. Stat. 898.
    Said first section provides:
    “ That it shall be unlawful for any person or persons, by agent or otherwise, to sell, in any quantity, intoxicating liquors, to be drank in, upon, or about the building or premises where sold, or to sell such intoxicating liquors to be drank in any adjoining room, building or premises, or other place of public resort connected with said building.”
    The eighth section of the act fixes the penalties for violating the first, second, third and fourth sections, and contains a proviso:
    “ That the provisions of the first and fourth sections of this act shall not extend to the sale of the wine manufactured of the pure juice of the grape cultivated in this state, or beer, ale, or cider.”
    The indictment charges that on the 4th day of July, 1858, Becker sold intoxicating liquors in violation of said act, to one Patrick Beston, to be drank on the premises where sold; but there is no averment, in any form, that the liquor so sold was not “wine manufactured of the pure'juice of the grape cultivated in the State of Ohio, or beer, ale or eider.” And on this ground Becker moved the court below to quash the indictment, but the motion was overruled, and Becker was tried, convicted, and sentenced to fine and imprisonment.
    The only question presented to the court, relates to the sufficiency of the indictment. Is it sufficient without containing the negative averment that the liquor sold was not “ wine manufactured of the pure juice of the grape cultivated in the State of Ohio., or beer, ale or cider.”
    
      S. JE. Browne, for the motion.
   By the Court

Held:

That in an indictment for a violation of the first section of the act of May 1st, 1854, “to provide against the evils resulting from the sale of intoxicating liquors in the State of Ohio,” it is not necessary to a perfect description of the offense as defined by the said first section, that the indictment should contain an averment that the liquor sold was not “wine manufactured of the pure juice of the grape cultivated in the State of Ohio, or beer, ale or cider,” as specified in the proviso at the end of the eighth section of said act.

That said proviso forms no part of the description of the offense of violating said first section, being contained in a distinct section of the act fixing the penalty for such offense; and the benefits of said proviso must be taken advantage of by the accused in making his defense upon the facts.

This is in accordance with the rule laid down in Hirn v. The State, 1 Ohio St. Rep. 24.

Motion overruled.  