
    Petway v. City of Cleveland.
    (Decided October 12, 1931.)
    
      
      Mr. Moses H. Dixon, for plaintiff in error.
    
      Mr. Erwin E. Boers and Mr. Norman A. Ryan, for defendant in error.
   Vickery, J.

This cause comes into this court on a petition in error to the municipal court of the city of Cleveland; the purpose being to reverse a judgment of conviction for the unlawful possession of liquor, for which Pearl Petway, the plaintiff in error, was sentenced to pay a fine of $100 and costs.

Prom an examination of this record and the proceedings relative thereto we can come to no other conclusion than that the judgment should be reversed and the plaintiff in error discharged, for there is no evidence in the record to show the unlawful possession of liquor.

It appears that the plaintiff in error was rooming at a particular place, in which other persons lived, and it appears that for some reason the officers became suspicious and noticed that one or two men came out from this place. Where they came from, the record does not show. Upon the strength of that the officers procured a search warrant and went to the living quarters of this plaintiff in error and found, it is stated, a little whisky, probably about two ounces, which was taken, and upon an analysis it was found to contain 55 per cent, alcohol and to be fit for beverage purposes.

Now this whisky was found in the bedroom of plaintiff in error, in a pitcher on her dresser, and plaintiff in error testified, and so told the officers at the time, that she had this whisky there for her own use. There is not a particle of evidence in the record to dispute that proposition. There is not a particle of evidence in this record to show that she trafficked in liquor. The evidence is exactly to the contrary, that she had never sold any liquor in that place and that what she had was for her own private use. Whereupon the trial judge asked the defendant whether she had a doctor’s prescription, and she said she had not. The judge promptly then overruled the motion to suppress the evidence, and after the evidence was introduced, which did not show any different state of facts, the court promptly found her guilty, holding that the mere possession of liquor in her house was an offense under the statute, unless she had a prescription from a doctor which authorized her to have it.

This is not the law. This court has repeatedly held that it is perfectly lawful to have whisky or liquor in one’s possession if it is not used in trafficking in liquor,, and trafficking in liquor can be proven by evidence of a sale or of circumstances from which a sale might be presumed.

In this case there is nothing which would have warranted the officers in assuming there was a violation of the law; nor, after they got into the house, was there anything to warrant the court in holding this woman guilty of the offense charged in the affidavit. It must be remembered that it is the unlawful possession of liquor that constitutes the offense. We have pointed out repeatedly that the unlawful possession of liquor is in having it for the purpose of trafficking in liquor, and that it is not an offense for a person to have liquor in his house with or without a prescription from a physician. It might be unlawful to transport it from the place where it is procured to the house without a prescription from a doctor, but, after it is there, the commission of that crime has ceased, and the possession alone is not an offense.

As already stated, this court has repeatedly decided this question, and it would be seemly if the lower courts would learn of the decision of this court when they are passing, upon these cases.

There is nothing in this record that would warrant a conviction of this woman, for there is no evidence of an illegal or unlawful possession of liquor in her home.

The judgment of the court below will therefore be reversed, and there being no evidence which would warrant a conviction, the plaintiff in error is discharged.

Judgment reversed.

Levine, P. J., and Weygandt, J., concur.  