
    Kane v. The State of Ohio.
    (Decided October 13, 1930.)
    
      
      Mr. B. A. Hunsinger, for plaintiff in error.
    
      Mr. F. E. Buckingham, prosecuting attorney, for defendant in error.
   Williams, J.

On February 17, 1930, the plaintiff in error, Owen J. Kane, was charged by affidavit of Calvin Shue, sheriff of Sandusky county, with unlawfully possessing intoxicating liquor. He was arrested on the same day, and on arraignment pleaded not guilty. Trial was had March 8, 1930, before the court, which resulted in a finding of guilty. Kane was sentenced to pay a fine of $400 and costs of prosecution, and to stand committed to the jail of Sandusky county until the fine and costs were paid, or secured to be paid, or he was otherwise legally discharged.

Kane now petitions this court to reverse the judgment so entered by the court of common pleas, claiming not only that the finding and judgment are manifestly against the weight of the evidence, but also that the record contains no evidence to support the conviction and sentence.

At the trial two witnesses testified, the sheriff and the accused. Shue, the sheriff, testified that he saw Kane on February 17, 1930, at “Dew Drop” on the Bay Shore in Sandusky county. Shue further testified: “I drove down to the end of the road at Dew Drop and parked my car and four fellows were at a Ford. And one ran out to an airplane that was parked out on the ice. When I got there there was four fellows around a Ford car. One ran out across the ice. I got three of them. This man and Mr. Rinehart and another that was there working at the car. They all left the car and started in different directions. The three walked away and I took them into custody after finding twenty some cases of whisky near the Ford. When I got out on the ice I heard two motors start and Mr. Kane and his partner had made an attempt to get away. And the one fellow ran on the left side of my machine and the wheel caught in my bumper and swung him back into the road and he got away. And Mr. Kane tried to get away.”

He testified also that the liquor was whisky and was “right out at the side” of the Ford car; that there was none in the Ford car; that Kane had none in his possession, none in his car, and none on his person; and that Kane told him at the jail “that he was coming from Marion, going to Cleveland and they said there was an airplane wrecked. He said there was a farmer boy stopped him. That he turned and went up the road and went down to this place to this airplane. He told me that he was a radio mechanic, and he stuck by that until he finally admitted that he went to get a little liquor. He said he was going down there to get a load of liquor to take to the Blue Front on West Third street in Cleveland.”

Kane testified that he was born in Cleveland and now lives at 2259 Warren road, Lakewood; that he and his family, consisting of himself, wife and one child seven years old, had lived there for seven years. Kane further testified: “I was in this town (Fremont). I was headed toward Cleveland. In the afternoon I went to get a cup of coffee and a man said to me ‘Where you from?’ and I said ‘Cleveland,’ and he said ‘There is an airplane wreck down here.’ He told me about a plane that was wrecked in an accident and asked me if I would give him a hand. He had an old Ford car. I do not know what model. I was anxious to see the plane wreck. I was in my car (an Oldsmobile), and he showed the way. There was a Ford car there in the ditch when I got down there and they were trying to get it out and just as I was there the sheriff came there. The sheriff parked his car four or five hundred feet from where it happened and my car was about 200 feet from it and the sheriff asked me if I owned the car and I said ‘There is nothing in it.’ I do not know how many men were out there. I could see them. I didn’t stop to count them. Just got out of my car and was standing along a tree. The sheriff was shooting across the ice at the men that ran away. I did not know it was the sheriff. A man said ‘You better get out of here, you are liable to get in trouble. ’ When I started to drive out I noticed that he was an official. Before that I didn’t know it. I got in the car after the sheriff said ‘I will get those fellows.’ He went out on the ice and started shooting. Naturally when you hear shooting you try to get out.”

Kane denied having told Shue that he came there to get liquor for himself or for anybody else, and said that he had no whisky on his person or in his automobile and that he “was not less than 200 feet from it when the sheriff came, and did not know what it was all about;” that he had no interest in the airplane and did not know to whom it belonged.

The foregoing is the substance of the testimony of these two witnesses. No other evidence, except a bottle of whisky, which the sheriff said he found on the ice witfi other bottles in a bag near the Ford car, was offered or received at the trial. This bottle was labeled “Walker Whiskey made at Walkerville, Ontario, Canada.”

There is no question that no eyewitness testified that the defendant himself had actual manual possession of the liquor, but possession does not have to be possession in hand. Possession in law means having custody and control of a chattel, either singly or with others. It is also true that possession may be shown not only by the direct evidence of eyewitnesses, but may also be shown by circumstantial evidence. It is also a well-established and well-settled principle of law in this state that where two or more persons enter into a conspiracy to commit a crime or an offense, the act of one of the conspirators in furtherance of the conspiracy is the act of all, and if two or more persons enter into a conspiracy to violate the Crabbe Act (Sections 6212-13 to 6212-20, General Code), and in furtherance of that conspiracy one of them has possession of intoxicating liquor, such possession of one is the act of all engaged in the conspiracy. 8 Ohio Jurisprudence, 55. This court applied that principle in Rudner v. State, 27 Ohio App., 59, 160 N. E., 718. In that case Rudner was convicted of murder in the second degree for the killing of Don R. Mellett, and there was no evidence in the record tending to show his presence at the scene of the crime, or his participation in any way in the act of killing, except as a co-conspirator who was absent at the time the crime was committed.

The.trial judge had before him the testimony of the sheriff and the defendant, and he had a right, in the exercise of his discretion, to believe the testimony of the sheriff. According to that testimony the defendant went to Dew Drop to get intoxicating liquor to transport to the Blue Front on West Third street in Cleveland. This information was received by the sheriff from the defendant himself, according to the sheriff’s testimony.

The evidence adduced by the state showed a plan to transport whisky from Canada to Dew Drop by airplane, and part of it on to Cleveland. It is difficult to understand how the defendant could have been at Dew Drop at the psychological moment, without some previous arrangement with co-conspirators with reference to the shipment of this whisky, and as it could not be brought into Sandusky county except in the possession of one of these conspirators, it follows that the court below was warranted in finding that the act of possessing this liquor on the part of co-conspirators was the act of the defendant. The defendant, from his standpoint, claims in his testimony that he was innocent of any wrong, and-that he merely, upon being requested, offered his assistance, on request of one of the parties, and if the court below had believed the defendant’s testimony no doubt he would have discharged him. Of course, if the defendant innocently and without any intention of violating the law, merely assisted others in helping to get an automobile out which was stuck in the ice, it could under no circumstances make him guilty of a crime. The defendant made conflicting statements as to his whereabouts immediately before the alleged offense, and in explaining his presence at Dew Drop. Considerable doubt was cast upon his testimony in this way. The testimony of the sheriff flatly contradicted that of the defendant in many particulars and gave rise to the inference of conspiracy as above stated. We have no hesitation in saying that the judgment of guilty pronounced by Judge Overmyer was such as was warranted, if he believed the testimony of the sheriff and did not believe'the testimony of the defendant. The trial judge saw the witnesses and heard them testify and therefore had greater opportunity to form an accurate opinion as to their credibility, and we cannot say that the decision and judgment are manifestly against the weight of the evidence.

The judgment will therefore be affirmed.

Judgment affirmed.

Richards, J., concurs.

Lloyd, J.,

dissenting. I have nothing to add to the statement of the evidence contained in the majority opinion, except to suggest that the record shows that Kane was employed by the Ackerman Auto Supply Company in Cleveland, that during the war he served with the 311th Field Artillery, and prior to February 17, 1930, had never been accused of, nor arrested on, any criminal charge.

It seems to me that there are no facts in evidence to support any theory of possession by Kane of any whisky, or of any ownership by him thereof, or of dominion or control thereover; nor any facts upon which any such inferences can be predicated. And, without dominion or control over the whisky, it must be admitted, I take it, that he was not in possession of any of it within the meaning of the statute upon which this prosecution is based. To suggest that he had theretofore conspired with the others there present to transport intoxicating liquors from Canada, and with, them was engaged therein, and that their possession of the whisky in question thereby became his possession, to my mind is not only novel bnt quite incomprehensible, especially in view of the fact that he is not charged with unlawful transportation of intoxicating liquor, nor with conspiracy with others to accomplish any unlawful purpose, and in view of the fact that there is no evidence that he had anything to do, directly or indirectly, with procuring or transporting the whisky from wherever it was obtained to the place on the ice where the sheriff says he found it. Even if such assumed theory were tenable, a conspiracy, a prearranged plan, must antedate the overt act, and some evidence thereof, other than the overt act, must be produced. I fail to find any here.

Giving full credence to the testimony of the sheriff that, when he arrived, Kane and three others were “around a Ford car,” near which, on the ice, were twenty some cases of whisky, and that thereafter Kane “admitted that he went to get a little liquor,” that “he was going down there to get a load of liquor to take to the Blue Front on West Third Street in Cleveland,” but that he found no liquor in Kane’s possession, in his automobile or on his person, the fact remains that Kane obtained and had no whisky, and so far as I am aware, unexecuted intentions have not yet been 'declared to constitute criminal acts. Assuming the facts to be as the sheriff testifies Kane told him they were, my guess would be that the proprietor of the “Blue Front” ordered or purchased some whisky which he had been advised would be at the Bay Shore near Fremont on February 17th, and procured Kane to go there in his Oldsmobile to convey it to Cleveland. Because of the activities of the sheriff, Kane’s mission failed.

As said in Brown v. Volkening, 64 N. Y., 76, 80: “Possession means simply the owning or having a thing in one’s own power.”

Bouvier says: “By the possession of a thing we always conceive the condition in which not only one’s own dealing with the thing is physically possible, but every other person’s dealing with it is capable of being excluded.”

Violations of the prohibitory liquor laws merit punishment, and no one is entitled to determine for himself what laws he will obey and what he will disregard, but rules of evidence do not change to fit particular cases. The Legislature has not yet said that a person charged with the unlawful possession of intoxicating liquors is presumed guilty until he proves himself innocent. The burden of proof has not changed. A verdict or finding, especially of guilty, in a criminal case, should be based not upon conjecture as to what must or might have been, but upon what is, as shown by the evidence.

In my opinion the evidence in the instant case, or rather, the want of evidence, requires not only a reversal of the judgment of the trial court but the discharge of the defendant.  