
    Swank v. The State of Ohio.
    (Decided November 25, 1931.)
    
      Messrs. Meenan & Walters, for plaintiff in error.
    
      Mr. C. 8. Leasure, prosecuting attorney, for defendant in error.
   Lemert, J.

On the 3d day of March, 1931, the sheriff of Muskingum county, Ohio, and two deputies, visited the home of plaintiff in error, H. W. Swank, with a search warrant sworn to by the prosecuting attorney of Muskingum county, Ohio, and searched his home for intoxicating liquors. Plaintiff in error was arrested later on an affidavit filed in the court of common pleas of Muskingum county. Prior to the time of trial a motion was made by Swank, duly sworn to by him, asking that the evidence obtained in the raid be suppressed and returned to him, for the reason that th¿ beer found was in a bona fide private dwelling, no part of which was used for any purpose other than that of residence. This motion was heard on or about the 20th day of March, and at said hearing the plaintiff in error offered himself as a witness, and the evidence at this hearing was taken down and made a part of the record and is included in the transcript of evidence in the record before us in the instant case.

At the conclusion of the evidence introduced on the part of plaintiff in error, the court overruled the motion of plaintiff in error, defendant in the court below, and held him for trial. In a few days thereafter trial was had, objection being made at the trial to the introduction of the evidence obtained in the raid, and exceptions were duly saved to the ruling of the court and to the overruling of the defendant’s motion to suppress the evidence. No evidence was introduced on the part of the defendant below, but by agreement and consent of the court the evidence offered on behalf of the motion was substituted and made a part of the evidence in the instant case. Defendant below then made a motion to dismiss the case, which was overruled, and exceptions saved. Thereupon, the court fined the defendant $500. The defendant below then filed his petition in error in this court.

The question presented in this case is whether the possession in a private residence of intoxicating liquor which has been unlawfully manufactured takes the private residence out of the category of a bona fide private residence. This is the only question involved as an issue in this case and presented for decision by this court. This question brings us to a consideration of the following sections of the General Code:

Section 6212-14: “The term ‘possess’ shall not apply to intoxicating liquor in a bona fide private dwelling.”

Section 6212-16: “No search warrant shall issue to search any private dwelling occupied as such unless it is being used for the unlawful sale of intoxicating liquor, or unless it is in part used for some business purpose such as store, shop, saloon, restaurant, hotel or boarding house.”

Section 6212-27: “No place shall be regarded as a bona fide private residence under the laws prohibiting the liquor traffic, wherein liquors are possessed which have been illegally manufactured or obtained.”

Section 6212-27 further provides: “In the performance of the duties imposed upon them by law, the commissioner, deputy and inspectors, may at all reasonable hours enter into, or upon all the buildings, places or things, excepting such buildings, places or things or parts thereof as are used exclusively for bona fide private residence purposes; and no place shall be regarded as a bona fide private residence under the laws prohibiting the liquor traffic, wherein liquors are possessed which have been illegally manufactured or obtained.

“Provided that nothing in this act shall be construed to permit any person to enter or search, with or without a warrant, a bona fide private residence as herein defined * * *.”

An examination of these statutes will show that the provisions of Section 6212-14 and Section 6212-16, above quoted, were passed at the same time, as a part of the Crabbe Act (108 Ohio Laws, Part 2, page 1182). As the statutes stood at that time there were only two conditions under which a private residence could be searched, those conditions being as follows:

1. If the private dwelling was used for the unlawful sale of intoxicating liquor.

2. If it was used for some business purpose, such as a store, shop, saloon, restaurant, hotel or boarding house.

After the above statutes went into effect it was found that liquor was being manufactured in private residences, and also that in private residences liquor was being kept which had been unlawfully manufactured or unlawfully obtained. The law at that time, as found under Section 6212-16, was such that a private residence could not be searched unless a sale had been made, or unless some part of the private dwelling was used for a business purpose, and private dwellings thereby were made very safe places for unlawful liquor violations, so long as no sales were made. As a result of this situation, whereby the officers were unable to search private dwellings in case there was no evidence of sale, although liquor was there manufactured or unlawfully obtained, the Legislature at its next session sought to remedy the condition, and did so, by including in the Miller Bill, 109 Ohio Laws, 6, the provision above quoted from Section 6212-27, General Code, to the effect that, “No place shall be regarded as a bona fide private residence under the laws prohibiting the liquor traffic, wherein liquors are possessed which have been illegally manufactured or obtained.”

This language is perfectly clear, and it shows the clear intent of the Legislature to take a private residence out of the category of a bona fide private residence if at that private residence liquors are possessed which have been unlawfully manufactured or obtained.

This case has been well presented in oral argument, and exhaustive and voluminous briefs have been furnished the court, and many cases have been cited of decisions made in Ohio by the Court of Appeals and Supreme Court upon the question here involved.

We find that for a proper decision of this case, applying the law as above quoted, we must look to the record before us of the testimony produced in the court below upon the motion to suppress and upon the hearing of the case upon its merits.

We find from the record, in the testimony of the defendant below, that at the time this raid was made he was living in a cottage house consisting of two bedrooms, two living rooms, a kitchenette, and bath; and so far as the record shows he was living there alone. At the time the raid was made about twenty quarts of beer were found, a vessel containing fifteen or twenty gallons of mash, a five-gallon can of malt syrup, another can of malt syrup partly full, and three other empty cans, a number of boxes of beer caps, about seventeen cartons of empty bottles, several cases of empty bottles, not in cartons, and showing evidence of having been used recently, several boxes containing several hundred beer caps, and many other vessels, bottles, implements and utensils used in the manufacture and making of beer.

The defendant, in the court below, upon the hearing of the motion, testified, as shown on page 7 of the record, that he was in the habit of buying extract in five-gallon can lots at different times. He testified that a gallon of malt extract would make twenty gallons of beer, or one hundred gallons for a five-gallon can of extract, or that one can would make four hundred quarts of beer. There were there at the time of the raid, at least five such cans of extract, both filled and empty, which would make two thousand quarts of beer.

The defendant in the court below testified, as shown on page 12 of the record, when asked the following question: “About how much beer has it been your custom to drink, giving whether or not you drink daily, and if daily, how much a day — your usual custom?” Answer: “Well, it is a common thing for me, if I am not feeling well, to drink three quarts before I go to bed.’,’ Again, on page 10 of the record, the defendant was asked concerning the beer, as to whether or not it was intoxicating, and his answer was, “Yes.” He further stated, “I don’t deny the fact that I have given beer away on several occasions.” Question: “Have you given away any beer to your friends and acquaintances?” His answer was: “Yes, sir.”

So that, taking the record before us in the instant case, we find and believe that the house or residence in question, while it may have been plaintiff in error’s home or residence, was not such residence as was contemplated by the Legislature when it passed Section 6212-27, referring to a bona fide private residence. The record before us and the defendant’s own admissions in the court below clearly show that this house or residence had ceased to be a bona fide private residence and was a shop or manufactory. It was not the intent of the Legislature to permit one to engage in the making and manufacturing of beer or intoxicating liquors to the extent that the record in this case shows the plaintiff in error was indulging in, and to allow him to say that he was making for his own individual use the volume and amount of beer that the record shows he was making.

We therefore find, on the record before us, and construing the law as above set forth, that the beer and liquors found and possessed by plaintiff in error at the time of the raid were illegally manufactured and obtained. It therefore follows that the court below was right when he overruled the motion to suppress the evidence, and upon final hearing of the case he was right in finding the defendant guilty as charged.

It therefore follows that the judgment of the common pleas court will be and the same is hereby affirmed.

Judgment affirmed.

Sherick, P. J., and Montgomery, J., concur.  