Held:
1st. 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.
2d. 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.
3d. This is in accordance with the rule laid down in Hirn v. The State, 1 Ohio St. Rep. 24.
Motion overruled.