
    221
    FRANK WNEK v. STATE
    Ohio Court of Appeals, Cuyahoga County.
    No. 4406.
    February 12, 1923
    This opinion lias not been published except in Abstract.
    SEARCH WARRANT — (1) Unlawful issue — Signed by Clerk of Court — EVIDENCE—-(2) Intoxicating liquor, evidence of smell of and appearance.
    Attorneys, G. C. Hafley, for Wnek; L. E. Skeel,. for State.
   Epitomized Opinion

. Defendant was arrested for having intoxicating liquor in his_ possession. The affidavit was sworn to before a judge of the Municipal Court but the search warrant was signed by the clerk of the court. Defendant was arrested at 4829 Superior avenue on July 9, 1922, by two police officers who first read the warrant to defendant before searching his place. One of the officers found a bottle in the kitchen and smelled of the contents thereof. A scuffle then ensued between the officer and three persons in the kitchen, and the bottle was taken from the officer and hidden. At the trial the officer testified that the contents of the bottle smelled like whiskey or raisin jack. Upon conviction the defendant prosecuted error proceedings based upon the grounds that the search warrant was unlawfully issued and that there was insufficient evidence of the intoxicating character of the liquor in defendant’s possession. Held:

1. As only the affidavit upon which a search warrant is issued must be sworn to before a judge of the court and sig-ned by him, a search warrant signed by the clerk of the court is valid.

2. Evidence of a police officer that certain fluid smelled like intoxicating liquor and had the appearance of intoxicating liquor is admissible as evidence tending to show that the same possessed intoxicating properties, which with other attendant and suspicious circumstances give rise to a prima facie case of guilt, in the absence of an explanation from the defendant.  