
    AFFIDAVIT — BILL OF EXCEPTIONS — INTOXICATING LIQUORS.
    [Cuyahoga (8th) Circuit Court,
    October 29, 1906.]
    Marvin, Winch and Henry, JJ.
    Minnie Page v. State of Ohio.
    1. Scienter not Necessary in Prosecution eor Keeping Place where Liquor is Sold, Purchased or Given Away.
    An affidavit charging a person with a violation of the Beal law (95 O. L. 87; Rev. Stat. 4364-20 et seq.; Lan. 7259 et seq.) in that he kept a place where intoxicating liquors were, sold, purchased or given away, need not aver that such place was “knowingly” kept.
    2. Bill op Exceptions, Certified to Contain All the “Substantial” Points oe Evidence Presented at Trial not Review able.
    A bill of exceptions, transmitted to the reviewing court with a certificate that it contains all the evidence except that presented on one day of the trial, and all the “substantial” points presented on that day, may not be reviewed as to the weight of the evidence by the higher court as it does not contain all the evidence.
    [Syllabus approved by the court.]
    ERROR to Cuyahoga common pleas court.
    D. M. Bader, for plaintiff in error.
    A. V. Taylor, for defendant in error.
    Unless knowledge is made an element of the offense by statute it need mot be averred nor proved. State v. Kelly, 54 Ohio St. 166 [43 N. E. Hep. 163]; Bissman v. State, 6 Circ. Dec. 712 (9 R. 714) ; State v.-Weston, 3 Dee. 15 (1 N. P. 350) ; Myer v. State, 6 Circ. Dec. 477 (10 R. 226) ; Black, Intoxicating Liquors Sec. 500; State v. Kroner, 6 Dec. 374 <7 N. P.172).
    The statutes dealing with the traffic are not regulative statutes. They are called local option statutes, but when the option has been exercised the traffic is as unlawful in dry territory as it would be if the constitution of the state provided for state-wide prohibition. Even the possession of intoxicating liquor except in a regular drug store or Iona ■fide private residence is unlawful, and is made prima facie evidence of a violation of the statute^ 98 O. L. 15, See. 12. ,
    The statute must be so construed as to carry out the intent of the law. It is the policy of the law in Ohio to discourage the liquor traffic. Kellar v. Koerber, 61 Ohio St. 388 [55 N. E. Rep. 1002. J
   WINCH, J.

This is a proceeding in error brought to reverse a judgment of the common pleas court affirming a conviction of plaintiff in error, before a police justice, on an affidavit charging her with keeping a place where intoxicating liquors were sold, purchased and given away contrary to the provisions of the Beal law (95 O. L. 87; Rev. Stat. 4364-20 et seq.; Lan. 7259 et seq.).

It is said that the affidavit is defective in that it does not state that'-, the accused “knowingly” kept said place.

We hold that an averment of scienter is not necessary in an affidavit; or indictment charging.a violation of the Beal law, so called.

A full consideration of the authorities on this subject will be found in the ease of State v. Fromer, 6 Dec. 374 (7 N. P. 172), decided by Judge Wildman, then common pleas judge of Huron county, now one of the judges of the circuit court of Ohio, sixth circuit.

It is also said that the judgment is not sustained by the evidence, but this proposition we are unable to review for the bill of exceptions does not contain all the evidence. This is no fault of counsel for plaintiff in error. It appears that trial was begun on August 3, 1906, the accused having no counsel present. After some evidence had been offered the trial was adjourned to August 10, with consent of the defendant. On the last-named day the defendant was present with her counsel who made an effort to bring out all the evidence that had been offered at the previous hearing, by a re-examination of the only wit-nesá who had then testified. At the conclusion of this effort the court said:

“You have substantially proved everything that he testified to before in this case in chief; may not be in the exact language, but the substantial points of that evidence you have in.”

The certificate to the bill, of exceptions recites:

“This bill of exceptions contains all of the substantial points of the testimony of the witness, F. P. Merrill, taken on August 3,1906, and all of the evidence offered by either party on August 10,1906, in the trial of this, cause.” We are compelled to say that the certificate does not authorize us to weigh the evidence contained in the bill of exceptions presented to us. It is- not sufficient that we have before us what the trial judge considers all the “substantial points of the testimony,” but we should’ have all the evidence. The reviewing court might not agree with the-, trial judge as to what were the real substantial points of the testimony. The certificate in this ease substitutes the judgment of the trial judge: on that point for the judgment of this court, leaving us unable to pass upon the weight of the evidence with any satisfaction to ourselves or-certainty of arriving at a correct conclusion.

The plaintiff in error was content to rest this matter in the judgment of the trial judge and there it must remain and the judgment must be affirmed.

Marvin and Henry, JJ., concur.  