or wine is produced, if it contains less than onehalf of one per centum of alcohol by volume, and is made as prescribed in Section 37, Title II of the Act of Congress known as the 'National Prohibition Act' passed October 28, 1919."

And that it should also negative that provision in Section 3 (Section 6212-15, General Code) which provides:

"Liquor, and liquor preparations and compounds for non-beverage purposes, and wine for sacramental purposes may be manufactured, purchased, sold, bartered, transported, imported, exported, delivered, furnished, received, given away, possessed, prescribed, solicited and advertised, but only in accordance with the provisions of Title II of the act of Congress known as the 'National Prohibition Act', passed October 28, 1919."

In other words, it is claimed that the affidavit is not sufficient because it does not set up that this liquor was not possessed for what might be a lawful purpose as described in these sections of the act, above referred to. We do not think that this is necessary, based on the following authorities:

In State v. Hutchinson, 55 Ohio St., 573, the supreme court held:

"The proviso contained in section 3, of pure food laws of the state, as amended April 22, 1890, (87 Laws, 248), applies to the whole act, and is not descriptive of any particular offense therein defined; and, for such reason, a negative averment of the facts within the proviso, is not required in an affidavit charging an offense against the act; but the facts may be offered in evidence as a defense under the plea of not guilty."

In this case, Judge Minshall, in his opinion, at page 575, says:

"Section 3 of the act contains this provision: 'Provided, that the provisions of this act shall not apply to mixtures or compounds recognized as ordinary articles or ingredients of articles of food, if each and every package sold or offered for sale be distinctly labeled as mixtures or compounds with the name and per cent. of each ingredient therein, and are not injurious to health.'

After quoting this proviso, Judge Minshall then goes on to say:

"It is claimed by the defendant that, in any event, the conviction was properly reversed, because the affidavit did not negatively aver that the beer so sold is an ordinary article of food, and that each package sold was distinctly labeled as a mixture or compound with the name and per cent. of each ingredient therein, and is not injurious to health. On examination it will be found, that the proviso in the statute, on which this argument is based, applies to the whole act, and is not made descriptive of any particular offense made punishable by it. It was not, therefore, necessary that the affidavit should have contained the negative averments as claimed by the defendant."

The same doctrine is held in Seville v. State, 49 Ohio St., 117, and other authorities of like import.

It seems from these authorities, and many others which we have examined, that if, from the description or definition of the offense, the selling or possessing of the liquor might be legal, it would then be necessary that the affidavit contain negative averments, but inasmuch as the lawful purposes are

contained in the proviso the offense is complete in charging one with the having in his possession liquor, etc. And then the statute providing, however, that in certain events the having of liquors may be legal, this makes it a matter of defense and the burden is upon the defendant to come in and show that his having the liquor in his possession is within the proviso and he is therefore not guilty of the offense. It is urged that this throws the burden of proof upon the defendant, but it will be noted that the offense claimed, which is violation of the law, is complete by making the charge "that he had in his possession the liquor," etc., stating where such liquor was found or in what sort of a building, or where he had it in his possession. Now the offense being complete as charged, of course if the defendant wishes to avail himself of the proviso, he must bring himself within that proviso in his defense.

In case No. 3458, Woody v. State, it is further claimed that the affidavit for a search warrant was not the proper affidavit. Upon an examination of the affidavit for a search warrant, it will be noticed that it described the place to be searched with particularity. It is true it named John Doe as the one who was in the occupancy of the premises, yet after the search warrant was obtained and the liquor taken under such search warrant a subsequent affidavit was filed charging the true defendant, Andrew Woody, with.being in possession of the liquor therein described. It is claimed that the issuing of this search warrant under such circumstances was a violation of one's constitutional rights. We cannot accede to this doctrine. Of course it would

have been error to have gone forward in this case and tried anybody for the crime of having liquor in his possession unless an affidavit or a charge of some kind was filed against him.

It is further claimed in this case that this liquor being taken from the residence of the defendant by an illegal search warrant, it could not be used as evidence, and it is claimed that this liquor was taken from the kitchen of the defendant, and therefore illegally taken, and was not proper evidence after a demand had been made for its return, and it is claimed that this demand was made in a plea of abatement in due season, which plea was overruled. The record in this case shows that in the front part of this so-called dwelling-house was a restaurant and soft-drink place; that the family lived upstairs, but had their kitchen downstairs; that the kitchen was being used to cook food for the restaurant; and that the family might have eaten in the dining room, but the food was carried through the dining room to the restaurant, and off of the dining room was a side room containing receptacles for soft drinks and other things.

The legislature has seen fit in the Crabbe Act to define what shall be regarded as a residence. In Section 4 (Section 6212-16, General Code) is the following language:

"No search warrant shall issue to search any private dwelling occupied as such unless it is being used for the unlawful sale of intoxicating liquor, or unless it is in part used for some business purpose such as store, shop, saloon, restaurant, hotel or boarding house. The term 'private dwelling' shall

Woody v. State.

[14 Ohio be construed to include the room or rooms used and occupied not transiently but solely as a residence in an apartment house, hotel, or boarding house. The property seized on any such warrant shall not be taken from the officer seizing the same on any writ of replevin or other like process."

It will be noticed that this so-called dwelling house was not solely used by the defendant for a residence, but was partly used for restaurant purposes, and it comes within the description contained in the Crabbe Act where a search of such premises is legal and valid. If the search was confined to that part of the building not solely used for a dwelling house, and the liquor was found therein, the searchers having a proper search warrant and searching property that was not immune from search, and obtaining liquor, the plea in abatement was not well taken and the court did right in refusing the plea and refusing to return the liquor.

Taking all these matters together, we think the court committed no error in finding the defendant guilty, and the judgment in case No. 3458, Woody v. State, will, therefore, be affirmed.

What we have said in this case applies with equal force to No. 3499, Nemcik v. State. In that case there was no search warrant, but the charge was as contained in the affidavit, that the defendant, "Frank Nemcik, then and there being, was unlawfully, during the time aforesaid, the keeper of a certain place located at Number 3721 Lakeside Avenue in said City, where intoxicating liquors, towit, whiskey, was in his possession in violation of the law." It was claimed that there was not suffi