
    No. 303
    MILITZ v. STATE
    Ohio Court of Appeals, Summit County
    No. 725.
    Jan. 5, 1923
    SEARCH WARRANT — (1) Application for restoration of porperty under illegal search warrants must be supported by evidence.
    ■ Attorneys — Gréenbaum, for Militz; Myers, ■ for State. -
   WASHBURN, P. J.

Epitomized Opinion

An affidavit was filed before a mayor charging Mility with illegally manufacturing and possessing intoxicating liquors. A search warrant was issuejc and the premises of the accused were searched where some home brew was found, also a copper still for its manufacture. These articles were seized and the defendant arrested. At the hearing, the defendant made a motion to dismiss because the affidavit was 'insufficient. This being ' overruled, he then filed a written motion for an order directing the return of the seized property upon the ground that the search warrant was insufficient. However, the accused did not offer any evidence to establish defendant’s ownership and his right to have the goods returned. The trial resulted in a conviction. Error was then prosecuted to Common Pleaose Court, where the judgment was affirmed. Error was then jrosecuted to the Court of Appeals, the defendant claiming that as the seizure was illegal, the court erred in not ordering a restoration. In sustaining the lower court it was held:

1. The making of an application'for the restoration of seized property, must be supported by evidence of ownership and the right of possession and such other facts as would tend to establish the illegality of the seizure. And a failure to do so leaves the- party making such application in the same position as .though never made.  