
    John Thalls v. The State of Ohio.
    X. The statute defining burglary has regard to the substantive character of the structure in which it may be committed, and not to the name or designation it may have acquired.
    2. A verdict of guilty, on an indictment for burglariously breaking and entering a “ still-house,” is not sustained by evidence that the structure alleged to have been violated was originally erected for, and had during many years been occupied as a “ still-house,;” but, though continuing to bear that designation, had, long before the alleged breaking and entering thereof, been permanently dismantled and abandoned as a distillery, and thereafter had been used continuously and exclusively as “ a mill for chopping com.”
    Error to the court of common pleas of Clarke county.
    John Thall was indicted and tried at the October term, Í871, of the Clarke common pleas, on two counts : the first for burglariously breaking and entering a “ still-house” with intent, &c.; and the second for grand larceny. The jury returned a verdict of guilty on the first count, but made no response to the second. The prisoner, by his counsel, inter, posed a motion to set aside the verdict and for a new trial on the grounds : 1. That the verdict was not sustained by sufficient evidence ; and 2. That the verdict was contrary to law.
    The prosecuting attorney, after verdict, of his own motion and without the consent of the prisoner, entered a nulle prosequi on the count for grand larceny. Whereupon the court overruled the motion for a new trial and entered judgment on the verdict; to reverse which, the record is brought into this court, the prisoner assigning as grounds of reversal that the common pleas erred: 1. In overruling the motion for a new trial; and 2. In sentencing the prisoner on the verdict, it not being responsive to the several counts ot the indictment.
    
      J. Warren Keif&r for plaintiff in error : .
    1. The evidence shows that the building was not, at the time of the alleged burglary, a still-house, but a mill. Allen 
      v. The State, 10 Ohio St. 287, 303, 4 ; East’s Pl. Cr. 496, 7, 8, 9 ; Roscoe’s Cr. Ev. 349, 350, 351; Cowen’s Cr. Dig. p. 73, § 6 ; People v. Marks, 4 Park Cr. Rep. 153 ; Wharton’s Cr. Law, §§ 1565, 1566, 1568, 1572, 1574; Bish. Cr. Procedure, § 321 ; Webster’s Die. “Still-house;” Price v. The State, 19 Ohio, 423.
    2. The variance between the charge and the proof tends to prejudice the substantial rights of the party charged, and is not healed by the most liberal construction of sec. 90 of the Ohio crim. code.
    
      T. J. Pringle and John Q. Miller for the State :
    The character of the building and the machinery therein, and its uses, made it proper to call the building a still-house ; and it was usually and commonly known and called a still-house. So there was no variance between the charge in the indictment and the proof. 3 Greenl. Ev. 12 ; 1 Russell on Crimes, side p. 803 ; 2 Id. side p. 802 ; 1 Starkie Ev. p. 409.
    
      F. B. Pond, attorney general, also for the State.
   West, J.

On the trial below a bill of exceptions was tendered by and signed for the prisoner, by which all the evidence offered to the jury touching the character of the structure in which the burglary was alleged to have been committed, was brought upon the record. From this, it appears, that the structure alleged to have been violated was originally erected for and had during many years been occupied as a “ still-ho use ;” that, during the same time, there was operated therein a small pair Of burs for “ chopping corn, both for the distilling and for customers ; that it continued to bear its original designation, though in 1862, long before the time of the alleged breaking, the boiler used in distilling was removed, the machinery and presses severed from their connections, and the building permanently dismantled and abandoned as a “ still-house,” with the distinct intention not to resume the business therein, but that it continued to be used as “ a mill for chopping corn” for customers.

This evidence is insufficient to sustain the verdict, and judgment of reversal must be entered on the first assignment of error.

The statute defining burglary has regard to the substantive character of the structure in which it may be committed, and not to the name or designation it may have acquired. A building, though erected for, and occupied during many years as a still-house, ceases to be such when permanently dismantled and abandoned as a place of distillation. Its original designation does not determine its substantive character, in the sense of the crimes act. This must be ascertained from the nature of the uses to which the structure is appropriated at the time it is violated.

Judgment of reversal must, therefore, be entered.

The prosecutor having entered a nolle on the count for larceny, it is out of the case, for which reason the second assignment of error has not been considered.

Welch, C. J., and White, Day and McIlvaine, JJ., concurred.  