cient evidence; but one policeman got on the witness stand and testified to the facts in the case, as to where he found the whiskey, and that it was whiskey, and another policeman was ready to testify, when it was admitted in open court by the defendant that such policeman would so testify, and nowhere in the record did the defendant deny any of the statements or testimony of the policeman. We therefore hold that in the Nemcik case the affidavit charged an offense, as we have outlined above, and that there was sufficient evidence to warrant the court in coming to the conclusion that it did, and that judgment will, therefore, be affirmed.

Coming now to the last two cases, No. 3526, Emre v. State, and No. 3516, Marcinski v. State, it takes us to the second part of Section 2 of the Crabbe Act. It will be noticed that in case No. 3526, the affidavit states that "John Emre did unlawfully have in his possession a certain property, to-wit, cider, designed for the manufacture of liquor, in violation of law, at 5500 St. Clair Avenue, contrary to the form of the statute in such case. made and provided."

That brings us to what we conceive to be the second division of Section 2 (Section 6212-14, General Code), that part which, after naming certain specific articles as intoxicating liquors, reads:

"And in addition thereto any distilled, spirituous, malt, vinous, or fermented liquor, and also any liquid or compound whether or not same is medicated, proprietary, or patented, and by whatever name called, containing one-half of one per cent. or

more of alcohol by volume which is fit for use for beverage purposes."

Now cider is not named as one of the specific articles among intoxicating liquors mentioned in the first part of Section 2 of this act, therefore it comes under this part of this section of the act, and the mere fact that one might have cider in his possession is not in violation of this act, unless it is cider which has reached such a stage of fermentation as to contain the required percentage of alcohol, which liquid in this state is fit for beverage purposes. We think that in order to charge an offense under this part of the statute, where they charge the having possession of certain liquids coming under this part of the statute, to bring it within the law and make a man guilty of an offense, or to charge him with an offense, it must be stated in the affidavit that said liquid contains at least one-half of one per cent. or more of alcohol, by volume, which is fit for beverage purposes. The affidavit in the case in question not having contained these provisions, it did not charge any offense within the meaning of the Crabbe Act, and therefore the judgment of the court was erroneous. For this reason the case will be reversed.

Coming now to No. 3516, Marcinski v. The State, much the same question is involved as in the preceding case, with an additional question which will be taken up later.

The affidavit charged "that on or about the 18th day of December, 1920, in the county of Cuyahoga, State of Ohio, one Harry Marcinski did then and there possess intoxicating liquor; that the possess

ing of intoxicating liquor as aforesaid by the said Harry Marcinski was then and there prohibited and unlawful," etc. Nowhere did it describe the kind of liquor it was. It says "intoxicating liquor." It is true they say it was prohibited and unlawful; but that we conceive to be a mere conclusion, and, therefore, no crime was charged under the act under discussion.

There is a further question in this case. The record shows that Marcinski was arrested late on Saturday night and was taken before the mayor of the village of Berea, and there entered a plea of guilty. There is some dispute as to the circumstances of this plea, but that matter is immaterial from the view we take of this case. Inasmuch as the affidavit did not charge an offense under the Crabbe Act, the court had no jurisdiction in the matter and there was nothing to which the defendant could plead guilty. It is claimed, however, that the plea of guilty waived this.

In the case of Davis v. State, 19 Ohio St., 270, the supreme court held that notwithstanding a plea of guilty the sentence must be reversed if the indictment be defective.

In other words the court held and it is sustained in a number of cases that if the affidavit does not charge an offense, or the indictment does not charge an offense, after conviction, if the case went to trial, it would be subject to a motion in arrest of judgment, and if a man plead guilty the same rule would obtain, because the affidavit having stated no crime as charged a mere plea of guilty, or

Woody v. State.

[14 Ohio conviction, would not waive the right to have the matter reversed if no crime was as a matter of fact charged. Therefore the argument that the plea of guilty foreclosed the defendant Marcinski from subsequently raising the question is not well taken. The affidavit in this case charged no offense, under the Crabbe Act, as we have already pointed out, so the subsequent plea of guilty did not give the court jurisdiction to render judgment; and a motion for a new trial having been filed, one of the grounds of which was based on the ground that the judgment of the court was contrary to law, and having been overruled and error having been prosecuted to this court, and this court having jurisdiction over the subject-matter, this court holds the judgment of the court below to be erroneous, and for this reason the case will be reversed.

Judgments accordingly.

WASHBURN, P. J., and INGERSOLL, J., concur.

App.]

Fisher v. State.

FISHER V. THE STATE OF OHIO.

Gambling-Schemes of chance-Section 13064, General CodeLottery defined-Element of chance exists, when.

1. To constitute a lottery under Section 13064, General Code, three elements must be present. There must be consideration given, there must be a prize, and the winning of the prize must be determined by chance.

2. The element of chance is present in a scheme by which the prize is awarded by some action or means taken in which result man's choice or will has no part, nor can human reason, foresight, sagacity or design enable him to know or determine such result until the same has been accomplished.

3. It is not essential, in order that the element of chance may exist in a scheme, that the result be determined by the happening of an event subsequent to the giving of the consideration. The determination may be based upon the subsequent ascertainment of facts unknown and unknowable at the time of the giving of the consideration.

4. Where the rights of a party to receive a prize depend on a series of consecutive numbers, and the smaller the number the greater the advantage, and the numbering is determined by the exact minute the application for membership is signed, and when by no human foresight can it be known at the time of the signing what the applicant's number will be, the scheme includes the element of chance.

(Decided February 7, 1921.)

ERROR: Court of Appeals for Cuyahoga county.

Mr. H. E. Elliott, for plaintiff in error.

Mr. Oscar C. Bell and Messrs. Ewing, Ling & Vickery, for defendant in error.

SHOHL, P. J. The plaintiff in error, William Fisher, was arrested and tried in the police court in the city of Cleveland on a charge of violating the lottery statute, Section 13064, General Code. From