
    Patrick O’Keefe v. The State of Ohio.
    1. The gist of the offense defined by the fourth section of the act of May 1, 1854, to provide against the evils resulting from the sale of intoxicating liquors, is the keeping of a place of public resort where intoxicating liquors are sold in violation of law, and not that the place kept is otherwise of any particular description.
    2. Where the place alleged to have been kept by the accused is described as a room, no case of variance is presented, although the proof given in support of the charge shows that the room kept was a cellar or a grocery.
    Motion for the allowance of a writ of error to the Court -of Common Pleas of Vinton county.
    The plaintiff in error was indicted and convicted under section 4 of the act of May 1,1854, “to provide against the evils resulting from the sale of intoxicating liquors, of keeping a place where intoxicating liquors were sold in violation of law.
    The place alleged to have been thus kept was described in the indictment as a room.
    The testimony given to support the charge tended to ■show that the room where the liquors were sold was also used for the sale of groceries, and might properly be denominated a grocery; and that it was an underground room.
    The court was requested, on behalf of the accused, to in■struct the jury that if they found that the place charged in the indictment as a room of public resort was either a grocery or .a cellar, and not a room other than every grocery and cellar is a room, there was a variance between the charge and the proof, and that the state had not made out the pffense charged.
    The court refused so to charge, and the defendant excepted.
    
      M. A. Daugherty, J. B. Groghan, and Barnhill, McGilway & Claypoole, for plaintiff in error:
    
      Section 4, S. &.C. 1481, defines a local crime as much, as burglary or arson, and the description of the place being a necessary part of the description of the offense, a wrong description is a fatal variance. Moore v. The State, 12 Ohio St. 387.
    In this statute one general term, “room,” is used, followed by several specific terms. “ All rooms, taverns, eating-houses, restaurants, groceries, coffee-houses, cellars, or other-places of public resort.”
    The word “ room ” is a general name considered with reference to the other terms, just as in the statute against horse-stealing the word “ horse ” is a general term, followed by the-specific terms “gelding, mare,” etc. “Room,” as used here, means any space in a building marked off' by a partition,, and may be used in an indictment, provided it is not also-one of the other things specified in the statute, as in a charge of horse-stealing the term “ horse,” the general name, may be used; but not when “gelding,” “mare,” “foal,” or “filly” is intended. Hooker v. The State, 4 Ohio, 348; Whart. Amer. Crim. Law, 611; State v. Plunket, 2 Stewart, 11; The State v. Baiford, 7 Porter, 101.
    The place referred to in the indictment in this case is shown by the plea in abatement and the proof to be a “ grocery.”
    The legislature did not use the terms “ room,” “tavern,” “ grocery,” etc, as synonymous.
    Section 12 gives a form of complaint to be used under the act, which applies to all the sections defining the offenses created by the act; and where it applies to section 4, it says “ is the keeper of a room or tavern, as the case may be,” etc., showing that the place should be described according to its true character under the terms employed in the act.
    
      John Little, attorney-general, contra :
    1. The plea in abatement was not properly made under-section 108, criminal code, and the demurrer was properly sustained.
    
      2. Sections 90, 91, criminal code, bear upon, and perhaps dispose of, the objections as to variance, etc.
   Bv the Court.

The requested instruction was properly refused. The gist of the offense, defined by section 4 of the act, is the keeping of a place of public resort where intoxicating liquors are sold in violation of law, and not that the place kept is otherwise of any particular description, The statute enumerates some, but does not purport to enumerate all the places which it is made unlawful thus to keep.

The particular place, therefore, whether it be one of those mentioned in the statute or not, is not of the essence, and is no part of the definition of the offense. The essential fact upon this point is that the place kept is a place of public resort.

In the present case, the place alleged to have been kept by the accused was described as a room. It was no less a room because it was under ground, or because it was a grocery. If it was a room, it answered in that respect the description of the indictment. Whether it was also a cellar, a grocery, or a dwelling was quite unimportant, except as proof of its character might aid in determining whether it was a place of public resort.

Motion overruled.  