
    No. 468
    DEWEY v. STATE
    Ohio Appeals, Second District, Franklin County
    No. 1074.
    Decided May 17, 1923
    CRIME — (1) Accused cannot claim that he has been twice put in jeopardy where a new trial is granted at his own instance. INTOXICATING LIQUORS —(2) Sufficient proof that liquor is intoxicating— (3) Conviction will not be set aside upon the question of credibility of witnesses — (4) Evidence sufficient; to connect accused with crime.
    Attorneys — James C. Nicholson, for Dewey; John R. King and R. R. Hughes, for State.
   BY THE COURT:

Epitomized Opinion

Dewey was prosecuted in the Common Pleas Court of Franklin county under. Section 6212-15 GC. for the unlawful manufacture of intoxicating liquor. The defendant was convicted before Judge Duncan. The conviction was set aside by this judge upon the g'round that the defendant had not been arraigned. The case was then re-tried- before Judge Rogers. The defendant filed a plea in bar alleging that he had once been in jeopardy in the trial before Judge ■Duncan. A demurrer to this decree was then sustained. The evidence disclosed that one Draudt ^and his wife had on their premises a still and also the ingredients for the manufacture of whiskey, and that the still was in operation when found. There was some conflict in the evidence as to whether any actual whiskey was found on the premises. The only evidence connecting Dewey with the offense was the testimony of Draudt and his wife, both of whom were particeps criminis. The only corroboration of their story was the testimony of Dewey himself who admitted that he had hauled the still to the Draudt house after night. The trial resulted in! a conviction, and the defendant was fined $800. Defendant prosecuted error. In sustaining the judgment of Judge Rogers, the Court of Appeals held:

1. As the new trial was granted upon the motion of the accused he cannot object to the re-trial upon the ground that he has already once been in jeopardy.

2. The State is not required to analyze liquor found, as it is a matter of general knowledge that where the essential ingredients of whiskey are placed in a still and subjected to the necessary amount of heat that the natural result is the manufacture of Whiskey.

3. A reviewing court cannot set aside a conviction even in a criminal case where the conviction rests upon the credibility of witnesses, unless it clearly appears that the conviction is against the manifest weight of evidence.

4. As testimony of other parties to the crime was corroborated by the testimony of the accused, he was shown to have been sufficiently connected with offense.  