
    INTOXICATING LIQUORS
    [Cuyahoga (8th) Court of Appeals,
    June, 1922.]
    Vickery, Sullivan and Ingersoll, JJ.
    John Ignath v. State of Ohio.
    1. Intoxicating Liquors Seized Admissible in Prosecution for Having Possession.
    In a prosecution for unlawful possession of intoxicating liquor, it is not error to permit introduction in evidence of the liquor found and seized on defendant’s premises, where no motion or petition was filed for a return of the property to the defendant on the ground of illegal seizure.
    2. Burden of Showing Place where Liquor Found Bona Fide Private Residence on Defendant.
    The state is not required to allege or prove that the defendant does not come within the proviso or exception of the statute, and in a prosecution for having unlawful possession of intoxicating liquor, it is for the defendant to show that the place where the liquor was found was a tona fide private residence.
    Error J. P. for Euclid Township.
    
      J. M. Kiss, for plaintiff in error.
    
      L. A. Tucker, for defendant in error.
   INGERSOLL, J.

Plaintiff in error was arrested upon a warrant for the violation of See. 6212-15 G. C., charging him with the unlawful possession of intoxicating liquors thereunder. Trial was had before L. L. Marshall, a justice of the peace for Euclid township, on March 27, 1922, wherein the defendant was found guilty and sentence imposed, from which conviction and sentence he prosecutes error in this court.

Upon the trial of the case in the lower court, no evidence whatever was introduced by the defendant, but upon the close of the state’s case, defendant, after moving for his discharge, rested his case.

The testimony introduced by the state, as appears from an agreed statement of facts filed herein, discloses that on March 18th, Carl Metta and James Naylor, both of whom were federal prohibition officers, together with R. E. DeSalm, a constable of Euclid township, by virtue of a search warrant addressed to the constable, made a search of the premises of plaintiff in error located at 4908 Detroit avenue, wherein they found four gallons of whiskey, which witnesses, Metta and Naylor testified, after being properly qualified, was rye whiskey. It further appeared from the testimony of the witness Metta that the containers holding said liquor bore no revenue stamps, and that in his opinion said rye whiskey was contraband liquor.

Prior to nor during the trial, no motion, application, or petition for the return of the property seized under the search warrant was made or filed, defendant simply making a formal objection to the introduction of the evidence without specifying the ground of his objection.

Upon argument before this court, but two questions were raised:

1. Did the court err in permitting the introduction of the evidence seized under the search warrant?

2. Did the burden of proving that the possession of the liquors seized was lawful or unlawful, rest upon the state or upon the defendant?

As to the first proposition, it is the law that no application having been made for the return of the property seized prior to the trial of the case, that the- question cannot now be raised in this court, and it was not error for the court to permit its admission in the case.

This question has arisen and been decided by the courts of appeals in six of the appellate districts of this state, each of them holding that if the defendant wishes to avail himself of his right to object to the introduction of the evidence seized under a search warrant, that he must make a reasonable application for the return of the property in an independent proceeding prior to the trial of the case in which said evidence is to be used.

This question was last before this court in the case of Cordova v. State, wherein Judge Sullivan, speaking for the court and reviewing the decisions submitted upon this question, held that such procedure was required.

Prior to that, in the case of Hendershot v. State, 140 App. 430 this court, speaking through Judge Vickery, in an opinion dated March 19, 1921, said as follows:

“We would not notice that in this case if it were not for the statement of the court below that he was going to hold in that way until the court of appeals held otherwise, because the record nowhere shows that a motion was made or the proper proceedings taken to get this property from the officers’ possession. In order to avail one’s self of this right to object to the use of the testimony thus obtained when no writ was issued, or a defective writ was issued, it seems to be necessary that a petition for the return of the property sworn to by the defendant should be filed at some time before the final adjudication of the case, or before the evidence is sought to be introduced, and as this was not done in the case at bar, or at least the record does not show that it was done, the defendant below might have been deemed to have waived this right. ’ ’

In the present case, no such application or petition for the return of the property has ever been filed, and relying upon the previous attitude of this court alone, the court is convinced that the first question above set forth should be answered in the negative.

In further support of this contention, the court calls attention to the case of Ankenbrandt v. State, decided by the court of appeals sitting in Lucas county, on February 13, 1922, wherein the court, passing- upon a somewhat similar question, stated as follows:

“No demand was made at any time upon the mayor for the return of the property in question. We have no difficulty in arriving at the conclusion that the demand for the return of goods alleged to have been illegally taken from the possession of the owner must be made upon the court, prior to the time of trial and not upon the individual officer in whose custody the property is. Manifestly this is true because the rightfulness of the demand is a question that must be tried before the court before whom the proceeding is pending.
“It is a question of fact which should be presented to the court in advance of and separate and apart from the trial of the case itself, in order that the trial court may have the opportunity to pass upon the application, and either order the return of the property or refuse to order the return of the property as the facts determined should be done, prior to the commencement of the trial itself.”

An other Ohio case that has been widely discussed upon this question, and frequently misunderstood and misinterpreted, is that of Kovacs v. State, 24 N. P. N. S. 1, decided by Judge Snediker of the Montgomery common pleas, wherein the court says:

“Where evidence is offered, if it be otherwise competent and relevant, an objection to its admission on the ground that it has been secured by unreasonable search and seizure, will not be entertained by the court. ’ ’

In the case of Adams v. United States, 192 U. S., 585 [48 L. Ed. 575], the court, in passing upon this question, says:

“A defendant who thinks himself wronged by the seizure of property belonging to him which he expects will be used against him later as evidence on a criminal charge, is not without adequate remedy. He should apply to the court for the return of the property alleged to have been illegally seized, and the issue of the legality of the seizure can then be determined in accordance with law and in an orderly manner.”

One of the latest eases dealing with this question and one to which frequent reference is made, is that of Wiggins v. United States, 272 Fed. 41, wherein the court states that:

“It is established law that collateral inquiry in the mode in which evidence has been obtained, will not be allowed when the question is raised for the first time at the trial. ’ ’

We feel that the previous attitude of this court is the correct one, and should and will be followed in deciding this question in the present case.

As to the second proposition to-wit: Did the burden of proving that the possession of the liquors seized was unlawful rest upon the state or was it a matter of defense? We find, in view of the authorities hereinafter cited, that it was strictly a matter of defense, and that the burden' of alleging or proving the same did not rest upon the state.

This is by far the most important question raised in this case, and because of this, we are taking advantage of this occasion to set forth fully the general prohibitory provision of the Crabbe act as found in the first sentence of Sec. 6212-15, G. C. which reads as follows:

“No person shall, after the passage of this act, manufacture, sell, barter, transport, import, export, deliver, furnish, receive, give away, prescribe, possess, solicit or advertise any intoxicating liquors, except as authorized in this act.”

From the above section it is clear that it was the intention of the legislature to outlaw the liquor traffic, except in certain instances wherein a privilege or a permit is granted. The only exceptions contained in the act are as follows:

“Liquor and liquor preparations and compounds for non-beverage purposes, and wine for sacramental purposes may be manufactured, purchased, sold, bartered, transported, imported, exported, delivered, furnished, received, given away, possessed, prescribed, solicited, and advertised, but only in accordance with the above provisions of Title 2 of the act of Congress known as the ‘National Prohibition act passed October 28, 1319.’ ”

and paragraph 2 of Sec. 2 of the same act, reading as follows:

“The term ‘given away’ and the term ‘possess’ shall not apply to intoxicating liquor in a bona fide private dwelling.”

It is clearly evident that, if the defendant lawfully had possession of intoxicating liquor, it must have been held under one of the preceding exceptions specified in the act. There is nothing contained in the evidence in this case that could by the wildest stretch of the imagination justify one in believing that the rye whiskey seized was possessed for non-beverage or sacramental purposes, and therefore, if it was lawful, it could be only by virtue of being possessed in a bona fide private residence as defined by the laws of Ohio.

There are two provisions of the Ohio code which go towards defining what premises may be regarded as a bona fide private residence. The first is contained in Sec. 4 of the Crabbe act and reads:

“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. ’ ’

The above provision was for approximately one year the only definition of a bona fide private residence in Ohio. It soon became apparent that such definition was defective in that it only took from premises their right to be considered a bona fide private residence when liquor was thereon being sold. The law making possessing, manufacturing, etc., equally a violation of the law was powerless to enforce those provisions of the law because of the strictness of the definition above set forth. After one year’s efforts resulting in a failure to make any substantial headway in enforcing the law against the liquor traffic, the legislature saw fit in the exercise of its prerogatives to further and more correctly define for the enforcement of the prohibition laws, a bona fide private residence, and in the emergency clause of the Miller bill is found ample evidence of the above contention, wherein they say:

££ This act is hereby declared to be an emergency act, necessary for the immediate preservation of the public peace and safety. Such necessity exists because of the reason that flagrant violations of the law prohibiting the liquor traffic prevail in some parts of the state which is encouraging the commission of other crimes, all resulting in the loss of life and property to many citizens.”

In Sec. 7, paragraph 3 of the Miller bill, it is stated 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. ’ ’

The above section is still law in the state of Ohio, and has been upheld by the courts in every instance wherein it has been invoked.

It is the contention of the defendant in error that if plaintiff in error seeks to show that the liquor seized upon the premises occupied by him, was possessed in a bona fide private residence, it is first necessary that he show that the premises were not used for any business purpose such as store, shop, saloon, restaurant, hotel, or boarding-house; secondly, that the liquor being found upon gaid premises, he must prove that it was lawfully acquired and possessed.

This brings us directly to the question of whether or not it is necessary for the state to allege or prove matter contained in a proviso or exception to a general statute.

This court in the case of Petro v. State, 14 App. 256, speaking through Judge Ingersoll, and construing the same identical provisions of the Crabbe act on which the defendant in error relies spoke as follows:

‘ ‘ The complaint made by defendant in error is to the effect that the affidavit does not contain the negative allegation that the ‘possession’ charged was not in his bona fide private dwelling house, and that therefore no offense was charged.
“The question before the court for decision, then, is: whether it is necessary to set forth the negative averment to the matter of a proviso in a statute in an information or affidavit charging an offense.
“Our conclusion, after reviewing carefully the authorities in the state of Ohio on this proposition, is: that a negative averment to the matter of a proviso in a statute is not requisite in an information, unless the matter of such proviso enters into and becomes a part of the description of the offense, or is a qualification of the language defining or creating it, and that the provision contained in Sec. 2 of the Crabbe law above cited does not enter into and become a part of the description of the offense or qualify the general language defining the offense.
“The language of See. 3, which is the enacting clause of the law as to the offense of ‘possessing/ is general, and makes it an offense for any one to have intoxicating liquor in his possession. Section 2 simply creates an exception to the general provisions of Sec. 3, charging the offense and excepts from the operation of the law the possession of intoxicating liquor by anyone in his own private dwelling-house.”

From the foregoing opinion of this court it is evident that it is not incumbent upon the state to prove that the premises were not a bona fide private residence, but that the burden rests upon the defendant of proving that he comes within the exception or proviso of the statute, and to do this he must prove the premises to be a bona fide private residence as defined by the laws of Ohio.

The court in its review of the authorities in Ohio quotes with approval Hirn v. State, 1 Ohio St. 15; Billingheimer v. State, 32 Ohio St. 435; Hale v. State, 58 Ohio St. 676 [51 N. E. 154] and Brinkman v. Drolesbaugh, 97 Ohio St. 171 [119 N. E. 451].

In the last case above cited defendant in error contends there is ample warrant for the position taken by it, in that part of the decision quoted with approval by this court in reaching its decision, wherein the Supreme Couit says:

“If the acts complained of in this case were within the exception, the defendant’s rights were fully protected by permitting him to set them up in defense. These were matters as to whch he had particular and special knowledge, and no harm can come to him nor to the state by imposing upon him the duty of bringing himself within such exceptions.”

We think that the rule laid down by the Supreme Court in the above cited paragraph applies with full force to the facts of the case now before this court. A search of the defendant’s premises is made. The law prohibits the possession of intoxicating liquors. Liquors are found upon the premises. The defendant claims the benefit of a proviso or exception contained in the law. The burden rests upon him to show that he comes within the proviso or exception. The facts “were matters as to which he had particular and special knowledge, and no harm can come to him nor to the state by imposing upon him the duty of bringing himself within snch exceptions,” and proving that the liquor was not lawfully acquired, if such is the case.

On this point this court in its previous decisions has shown and quoted with approval an unbroken line of decisions from Ohio State, Yols. 1 to 97, holding that where one claims the benefit of a proviso or exception, the burden is on him to prove that he comes within such proviso or exception. In the present ease, the defendant claims the benefit of paragraph 2 of Sec. 2 of the Crabbe act, which this court has held to be such an exception that need not be averred or proven by the state, but should be proven by the defendant.

This court, in its concluding paragraph, and summing up its decision in the Petro case, says:

“In view of the doctrine so clearly laid down by the foregoing authorities, we are of the opinion that it was not necessary for the affidavit on which the arrest was based in the case at bar to contain the negative allegation that the possession of the alcohol by the defendant was not in his private bona, fide dwelling.”

The law in this respect has not changed, and it is still encumbent on the defendant to prove that he comes within the exception provided. The only thing that has changed is the definition of what is a bona, fide private dwelling, and we hold that a change in the definition of a private dwelling does not transfer this duty or burden from the defendant to the state, but that the defendant must prove under the definition as it now exists that the premises were a bona, fide private dwelling. In this case the defendant introduces no evidence whatever, and there is nothing before the court that would tend to bring the defendant within the exception provided in paragraph 2, of Sec, 2, of the Crabbe act.

In passing upon this question, the court of appeals of the fourth district of Ohio in the case of Callahan v. State, after quoting the definition of a bona fide private residence as contained in the Miller act, says:

“The legislature in this sentence undertook to define, for more efficient enforcement of the law, what places should not be considered bona fide private residences. The Miller law takes out of the category of bona fide private residences those places where liquors are possessed which have been illegally obtained. ’ ’

And in the case of State v. Elson, 45 O. C. C. 819; 32 O. C. A. 481, we quote the following:

“It will be observed that the offense defined in said Sec. 6212-15 consists in possessing intoxicating liquors, and when the proof establishes that fact it is all that is required under said statutory provision. If the intoxicating liquor is possessed lawfully, that may be shown as a matter of defense.
“We do not think it necessary to aver in the affidavit that said intoxicating liquor was for beverage purposes for the further reason that the ‘Crabbe act’ simply outlaws intoxicating liquor for beverage purposes, and the force and effect of said act is that one who possesses it is guilty of an offense, unless such possession comes within the exceptions thereto, and which exceptions must be affirmatively established as a defense. ’ ’

In summing up the Ohio law applicable to this case, the following is seen:

The Crabbe act outlaws intoxicating liquors except in certain ways therein specifically exempted from the operation of the law.

Secondly, that if a defendant wishes to avail himself of the exception provided in a statute, he must affirmatively show that he comes within such exception. In this case the defendant is claiming the benefit of an exception contained in paragraph 2 of Sec. 2 of the Crabbe act, and it is the holding of this court that the burden rests on him to show that he comes within said exception, and that to prove that he comes within said exception he must show his premises to be a bona fide private residence within the meaning of that term as defined by the Miller act.

In conclusion, we wish to again emphasize these two things:

First, no demand having been made for the return of the property seized under the search warrant, it was properly admitted in evidence.

Second, that the defendant claims the benefit of an exception in the statute, and that the burden rests on him affirmatively to show that he comes within such exception. To do that in this case he must prove that the premises whereon the liquor was seized were a boma fide private residence under the laws of Ohio, and to do this he must establish the fact that the liquors found in his possession were lawfully obtained.

Both of these questions we feel have been decided in favor of this construction by this court. We feel that the previous finding and decision of this court was correct and sound, and that in accordance therewith, the judgment of the court below is correct, and should be and the same is hereby affirmed.

Vickery and Sullivan, JJ., concur.  