
    No. 457
    DAMM v. CINCINNATI (City)
    Common Pleas Court, Hamilton Co.
    No. 192169.
    Decided Feb. 28, 1925.
    1071. SEARCHES AND SEIZURES—Officers stopping automobile to search for liquor, not armed with a warrant; is an unlawful act where there is failure to find liquor, such stopping and arrest being in the nature of an assault and battery.
    Attorneys—C. M. Price for Damm; Pros. Atty. for Police Court, for City; both of Cincinnati.
   DARBY, J.

Frank Damm was charged upon an affidavit in the Cincinnati Municipal Court with assault and battery and upon his conviction was fined $50 and costs. It seems that Damm and .several others were prohibition officers, and acted upon information derived from other sources, and stopped one, Scheid, searching his machine without a warrant. Scheid thought they were holdup men, and claimed that he was struck a blow by one of them. Damm prosecuted the judgment of the Municipal Court to the Hamilton Common Pleas and the court held::

1. Sec. 6212-43 authorizes seizure and arrest when officers find that unlawful transportation of liquor is being made, but officer acts at his own peril when he acts without a warrant and fails to find a transportation in violation of law.

2. An unlawful arrest is in the nature of an assault and battery, and the stopping of Scheid and forcing him to drive to the curb was in itself a violent act.

3. Being of the opinion that the acts of Damm constituted an assault if not assault and battery. Judgment of lower court is affirmed.  