
    POSSESSION OF FRUIT JUICES WHICH HAVE UNDERGONE FERMENTATION.
    Common Pleas Court of Montgomery County.
    Vito Rotuno v. The State of Ohio.
    
    Decided, July 10, 1923.
    
      Intoxicating Liquors- — -Purpose for which, Fermented Grape Juice can he Held — May he Seized hy Legal Process, When — -Section 6212-15.
    1. 'Non-intoxicating fruit juice manufactured for home use, which by process of fermentation has become wine and is intoxicating, may not be possessed for any other purpose than to “sell and deliver” as permitted in Section 6212-17.
    2. .If such fermented fruit juice is possessed for beverage purposes, Section 621215, General Code is violated, and it may be seized by legal process, but possession alone is not subject to the penalties when without knowledge of illegal alcoholic content.
    
      
       Affirmed by the Court of Appeals.
    
   Snediker, J.

This case is on error to the judgment of the justice of the peace of Madison township, this county, where the plaintiff in error was charged—

“That on or about the 27th day of. February A. D., 1923, in the county of Montgomery, State of Ohio, one Vito Rotuno did then and there possess intoxicating liquors to wit, wine; that the possessing of intoxicating liquors as aforesaid by the said Vito Rotuno was then and there prohibited and unlawful and contrary to Section 6212-15 of the General Code,’-’ etc. _________

The defendant was found guilty and fined by the court below. The evidence taken before the magistrate shows that on the 27th day of February, 1923, Baker, Onan and Thompson, with some others, bearing a search warrant, went to number 30 Carl street in Dayton, Ohio, where they found a two-story dwelling house, occupied as such, and no business of any character being conducted therein or about the premises. At the time the officers arrived nobody was at home. Having secured an entrance, they went into the cellar and, as testified to by Baker, found ten barrels full of wine and nine empty one gallon jugs that had had wine in them, five gallons of malt in gallon jegs, two one gallon jugs of wine, and two other gallon jugs about half full of wine. According to Officer Onan, they.located nine full barrels of wine and four empty barrels. He also testified,

“There were jugs setting there along around the cellar. I didn’t count the jugs, but it was anywhere between fifteen and maybe twenty gallon jugs sitting there near the barrel. On the other side of the building there was a row of quart bottles setting on. the cellar floor; some were full and some were empty.”

Having completed their search, the officers returned on the warrant: “About 500 gallons of wine, five gallons of extract of malt, nine empty jugs had wine in.”

This wine was tested by the officers who testify that they had experience in drinking intoxicating liquors and was by them said .to have an al'colholie content above that allowed by law. A sample was taken and submitted to the city chemist. Upon his analysis he found it to contain. 8.95 per cent alcohol by volume.

In explanation of the location of the wine in his house, Rotuno testified that it was made for the consumption of his family which consisted of himself, his wife, and six children, the oldest of the latter being fourteen and the youngest two years of age. He claimed that he bought the grapes and made the juice. On cross examination he said that in September of 1922, he had bought about eighty or ninety boxes of California grapes, had them five days, and then pressed them out; that he had put neither sugar nor anything else with the juice; that the wine was sour wine. He claimed that it was his habit from year to year to make grape juice in the same way. Last year he made 150 gallons.; in 1921 he made four barrels; and in 1920 five barrels. He admitted that he had eight and a half barrels of, wine in the cellar and that there were about four empty barrels; also that he had wine in the jugs.

This evidence was taken on an application for the return of the property which was by the court denied, and there-, after it was agreed by counsel for the prosecution and for the defense that the testimony taken on the application should be the testimony on the merits. It was upon the submission of this that the court rendered his judgment.

This record brings us to a consideration of á provision of the prohibition law of Ohio which has been much in .controversy. In Section 6212-17 of the General Code, after stating the penalties to be imposed for the violation of the prohibition law, .the language is as follows:

“The penalties provided in this act shall not apply to a pei’son for manufacturing vinegar or non-intoxicating cider and fruit' juices exclusively for use in his home; but such cider and fruit juices shall not ibe sold or delivered after they become intoxicating except to persons having permits from the United States Government to manufacture vinegar. Nothing herein shall be construed to prevent the sale of vinegar, and said penalties shall not apply to any such sale.”

The proper interpretation of this exception requires a reading of prior prohibitory sections. Section 6212-15, for the purpose of this decision, reads:

“No person shall, after the passage of this act, manufacture, sell * * * possess * * *■ any intoxicating liquors except as are authorized in this act. * * *

Section 6212-14 recites:

“In the interpretation of this act, the word ‘liquor’ or the phrase ‘intoxicating liquor’ shall be construed to inelcde * * '* wine and in addition thereto any vinous or fermented liquor.”

Section. 6212-16 reads:

“It shall be unlawful to have or possess any liquor or property designed for the manufacture of liquor intended for use in violation of law or which has been so used; and no property rights shall exist in any scch liquor or property.”

Under the provisions of 6212-14-15 and 16, any intoxicating liquor unlawfully manufactured or obtained, found in the possession of a defendant is contraband and such possession on his part is a violation of the law. But it is claimed by counsel for plaintiff in error that he is entitled to the benefit of the exception found in 6212-17.

It will be observed upon the careful inspection of the verbiage of the exception that the penalty provided in 6212-17, which is imposed on account of the violation of Section 6212-15, does not apply to a person manufacturing non-intoxicating fruit juices exclusively for use in the home of the person so manufacturing it. Whether or not it is to be so used is, of course, to be determined from all the evidence in the ease, which would include both direct and circumstantial. Nothing is said in this exception with respect to the possession of the manufactured product, but there follows this statement:

“But such cider and fruit juices shall not be sold or delivered after they become intoxicating, except to persons having permits from the United States Government to manufacture vinegar.”

This proviso, taken together with what precedes it, contemplates a lawful possession on the part of the person who has manufactured the fruit juices, both while' it is' nonintoxicating and while it" is "intoxicating, but' if it'beeomes intoxicating then only so far as’ to enable him to sell and deliver to persons having permits from the United States Government to manufacture vinegar. This exception does not qualify the unlawful manufacture of an intoxicating liquor, but it does qualify the possession of an intoxicating liquor lawfully manufactured as non-intoxicating. It is manifestly true that one could not sell or deliver an intoxicating liquor which he did not possess and that it would be necessary for him to possess it after it became intoxicating to take advantage of that provision, of this exception which says that he may sell and deliver to the permitted persons.

We are not of the opinion that there is to be read into this exception a provision that the quiet processes. of Nature, without any assistance from the owner of the fruit juice, can make his possession thereof subject to the penalties in Section 6212-17. “The result of one’s acts is often different from what he intended. When it is, and is evil, the rule of morals excuses him if his motive is good. The rule of law is the same.” But it may be contended that after the fruit juice is lawfully manufactured, it is tne uuty of the owner to guard against fermentation or be a guilty possessor who may be fined and so forth. This act does not so provide. If this is an exception at all, such contention falls to the ground. The failure to take such precaution may not be said to carry with it a presumption that it is the intention of the owner to violate the law. ' -

However, it is our duty to put such construction on this provision as will remove any apparent repugnance or inconsistency with the main body of the prohibition law of the state. We are, therefore, constrained to hold that nonintoxicating fruit juice manufactured for home use which by process of fermentation has become wine and is intoxicating may not be possessed for any other purpose than specified in this exception (to “sell and deliver’.’ as permitted.) If possessed for beverage purposes, Section 6212-15 of the General Code is violated and it may be seized by legal process. • ■

We have given here our construction of this enactment, but we do not find that the possession of this plaintiff in error comes within this saving clause. The physical evi'-dence is to the contrary and contradicts his claims.

The judgment of the lower court is affirmed.  