
    No. 711
    DRAKE v. STATE et
    Ohio Appeals, 2nd Dist., Franklin Co.
    No. 1335.
    Decided April 8, 1927.
    1265. WEIGHT OF EVIDENCE — 661. Intoxicating Liquor — Where one policeman testifies that he found small quantity of liquor and two other policemen who participated in raid testified that they did not find any liquor, evidence is sufficient to sustain conviction upon the charge of possession.
    Error to trial court.
    Judgment affirmed.
    First Publication of this Opinion.
    Attorneys — E. G. Fickell for Drake; Charles A. Leach and Baxter Evans for State; all of Columbus.
   BY THE COUBT.

This case is submitted upon application for a re-hearing as to the conviction upon .the .possession charge. It is contended by counsel for plaintiff in error that the evidence is not sufficient to sustain the conviction upon the charge of possession. Bowman, one of the policemen, testified that when he searched the kitchen he found a small quantity of liquor. This was after the liquor had been sold to the boy. The other two policemen, who, participated in the raid and who were called as witnesses, testified that they did not .find any liquor in the kitchen or on the premises after the sale had been made. The record does not disclose which one of the policemen visited the kitchen first nor in what order the. searches were made. The testimony of the three policemen might be reconciled if Bowman were the first of the policemen to enter the kitchen. Bowman does not undertake to say, in his testimony, what he did with the small quantity of liquor which he found.

It must be remembered that- the Court of Appeals is a reviewing court and not a trial court. Consequently this court must give the trial court the advantage of seeing and hearing the witnesses. Bowman having testified positively that he found the small quantity of liquor in the kitchen and it not appearing in the record that the other two police officers were in a position at the same time to see the small quantity of liquor, we are of the opinion that the trial judge might have accepted the testimony of Bowman. We therefore reach the conclusion that there was some evidence-tending to support the finding and judgment of the trial court, and that such finding and judgment are not contrary to the manifest weight of the evidence.

Judgment affirmed.

(Ferneding, Kunkle and Allread, JJJ., concur.)  