
    Blatnik v. The State of Ohio.
    
      Intoxicating liquors — Unlawful possession — Section 6212-15, General Code — Hearing on motion to return seized liquors —Independent proceeding and condition precedent to trial on merits — Prejudicial error to deny hearing on motion to return liquors — Section 6212-16, General Code — Warrant to search private home or dwelling invalid, when— Wine is an intoxicating liquor — Section 6212-1U, General Code.
    
    1. Hearing on motion to return liquor seized as evidence and trial on merits are independent proceedings.
    2. Hearing on motion to return liquor seized as evidence is condition precedent to hearing on merits.
    3. Denial of hearing on motion to return liquor seized under search warrant held, in view of Section 6212-16, General Code, prejudicial error.
    4. Issuance of warrant to search private home and dwelling of defendant not engaged in bartering intoxicating liquor held violative of Section 6212-16, General Code.
    5. Under Section 6212-14, General Code, wine is an intoxicating liquor.
    (Decided November 22, 1926.)
    Error: Court of Appeals for Cuyahoga county.
    
      Messrs. Tolies, Hogsett, Ginn & Morley, for plaintiff in error.
    
      Mr. George A. Hurley, for defendant in error.
   Sullivan, J.

This cause is here on error from the court of common pleas, which sustained a conviction against the plaintiff in error for the violation of Section 6212-15, General Code, which provides a penalty against one possessing intoxicating liquors.

It appears that numerous deputies, with a search warrant issued by the mayor of the village of Linndale, Cuyahoga county, on the 15th day of April, 1926, searched the private residence of one Charles Blatnik and discovered two barrels ' of wine. A sample was taken of the liquid, and immediately the remaining portion and the barrels themselves were destroyed. Later on, and before trial, a motion was made for the return of the property, but a hearing thereon was summarily denied, and, proceeding to trial upon the merits of the case a conviction was had, and, later, on proceedings in error, the judgment was affirmed by the common pleas court, and to those judgments the plaintiff in error makes challenge on the ground that the court committed error in denying a hearing upon the motion for the return of the liquid, and that the record conclusively shows that the building was the private home and dwelling of the plaintiff in error.

It has been frequently held that if no motion or petition is filed for a hearing upon the question of the return of the liquor, a general exception to the evidence offered at the trial is without avail. The converse is true that, where a hearing is denied upon the motion or petition, then an objection to the evidence might be sustained. It is well-settled law in Ohio that the hearing upon the motion and petition, and the trial upon the merits of the case are two separate and independent proceedings, and that the hearing with respect to the return of the liquor shall be held prior to the trial as to the merits of the cause, if the motion or petition is filed,- and hearing had thereon is in the nature of a condition precedent to the proceedings upon the merits of the case. And the reason is obvious. Under such a proceeding the person charged is entitled affirmatively to show that the property seized is one of the inhibitions of the law, and if he sustains his case, under the proof required, then there is no necessity for the trial of the case upon its merits, because the subject-matter is contraband.

In the instant case the motion for a hearing on the question of returning the liquor could only apply to the samples taken, for the reason that the bulk of the liquid had been destroyed with the barrels by the officers seizing the property without warrants or authority of law, as the procedure with respect to the disposal of the seized property becomes one of the powers of the court, as laid down in Section 6212-16, G-eneral Code.

It is our opinion, therefore, that there was prejudicial error in the denial of the motion for a hearing upon the return of the property, and that thereby the plaintiff in error was prejudiced in his rights by being denied the procedure in his behalf provided by law. Authority upon this question is found exhaustively treated in Ignath v. State, decided by this court May 29, 1922, in an opinion written by the late Judge Ingersoll, and reported in 16 Ohio App., 191, 32 O. C. A., 433. That opinion quotes Ankenbrandt v. State, decided by the Court of Appeals of the Sixth District, sitting in Lucas county, on February 13, 1922, wherein the court, passing upon a somewhat similar question, used the following language:

“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 determine should be done, prior to the commencement of the trial itself.”

These rules follow the law laid down in Adams v. New York, 192 U. S., 585, 24 S. Ct., 372, 48 L. Ed., 575, which holds, in substance, as follows: 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. lie 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.

From an examination of the record, it appears beyond question that the property was seized in the home of the plaintiff in error, and consequently the issuing of the search warrant was contrary to Section 6212-16 of the Code, which provides:

“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 record shows an absence of any testimony fixing the status of the dwelling otherwise than as the private home and residence of the plaintiff in error. There is also an utter lack of evidence in the record that plaintiff in error was in any manner trafficking, or attempting to traffic, in the liquid, and there is not even a ground noticeable in the record for a suspicion that the plaintiff in error Lad been bartering, or attempting to barter, in any manner, in the liquid seized. Therefore, it is our holding that prejudicial error was committed by the judgments of the lower courts.

It is claimed that there is no evidence in the record that the wine was intoxicating liquor, but we hold that under the interpretation given by Section 6212-14, General Code, the word “liquor,” or the words “intoxicating liquor,” shall be construed to include alcohol, brandy, whisky, rum, gin, beer, ale, porter, and wine. Therefore the absence in the record of this designation is immaterial, as the statute fixes wine as an intoxicating liquor.

It will be noticed that the affidavit charges the possession of intoxicating liquors. Bearing in mind what we have herein said concerning the law as to a private dwelling, we observe that subdivision 2 of Section 6212-14 uses the following language: “The term ‘given away’ and the term ‘possess’ shall not apply to intoxicating liquor in a bona fide private dwelling.”

With this section of the statute in view, and with the record and the -authorities applicable to the case at bar before us, it is our judgment that the cause should be reversed; and, inasmuch as the facts appear to be conceded, under the authority of our own Supreme Court we not only reverse the judgments of the lower courts, but discharge the plaintiff in error, on the ground that the judgments below are contrary to the evidence and contrary to law.

Judgment accordingly.

Levine, P. J., and Vickery, J., concur.  