
    No. 555
    SCZEPKOWSKI v. STATE
    Court of Appeals, Eighth District, Cuyahoga County
    No. 4699.
    Decided June 11, 1923
    this opinion has not been published except in Abstract.
    EVIDENCE — In criminal case facts which make prima facie against employe, may fail to convict employer.
    Attorneys — V. J. Conrad, for Sczepkowski; Lee 3. Skeel, for State.
   VICKERY, J.

Epitomized Opinion

Three. officers entered the premises of defendant. One of them saw a man at the bar about to drink something from a glass, and started towards him, when the bar tender, an employe of defendant, seized the glass from the customer’s hand and lashed it into the rinse water. The officer seized ihe wrist of the bar tender, pulled him hand and glass out of the water, and discerned the smell of whiskey in the glass.

Defendant denied that he had any intoxicating iquor on the premises, and denied any knowledge jf there being whiskey in the glass. A thorough search was made by the officers and no intoxicating Ruor was found and no receptacle was found from rich any intoxicating liquor could have been ;axen. There was no evidence as to where the man who held the glass in his hand obtained the glass jr its contents.

Defendant was found guilty and brought error pro-:eedings contending that the verdict and judgment were manifestly against the weight of the evidence. The Appellate_Court held:

If the bar tender were charged with having in-soxicating liquor in his possession, instead of his jmployer, the evidence would present a far stronger :ase and perhaps make out a prima facie case. Defendant was charged upon the theory that he is re-■posible for the act of his employee. The evidence jresented was not sufficient in law to authorized a :onviction. Verdict and judgment reversed and defendant discharged.  