
    Antorzek v. City of Lakewood.
    
      (Decided March 4, 1929.)
    
      Messrs. Krueger & Pelton, for plaintiff in error.
    
      Mr. R. G. Curren, for defendant in error.
   Levine, J.

The plaintiff in error was charged with possession of intoxicating liquor in violation of the ordinance of the city of Lakewood, which reads as follows:

“That whoever in the city of Lakewood, Ohio, manufactures, sells, furnishes, possesses, transports or gives away intoxicating liquor for beverage purposes, or keeps a place where intoxicating liquors are manufactured, sold, furnished, possessed or given away for beverage purposes, shall be fined for the first offense not less than One Hundred Dollars ($100.00), and not more than Five Hundred Dollars ($500.00), provided that it shall not be a violation hereof to possess or give away intoxicating liquors in one’s bona fide private dwelling unless such private dwelling is a place of public resort. And provided, further, that nothing herein shall be so construed as to prohibit anything permitted or authorized to be done by the constitution or laws of Ohio or by the constitution or laws of the United States relative to the trafficking in intoxicating liquors.”

After a full trial, the plaintiff in error was found guilty as charged and a fine imposed under the ordinance.

It appears that on or about September 1, 1928, a police officer of the city of Lakewood, on information and belief, swore to an affidavit for a search warrant, and by virtue of said affidavit, a search warrant was issued authorizing the search of a single frame dwelling at 1605 Newman avenue, Lakewood, Ohio, wherein plaintiff in error and his family resided. Armed with the search warrant, a number of police officers proceeded to this place and instituted a search. The officers found thirty-two bottles of beer, two small whisky glasses, and seven whisky bottles, which latter were found among the rubbish in the rear of the garage.

Plaintiff in error, through his counsel, relied in the main upon the case of Bender v. Addams, 28 Ohio App., 75, 162 N. E., 604, which was decided in this court February 13, 1928. Our decision in the Bender case construed Section 6212-27, General Code, which reads:

“No place shall be regarded as a bona fide private residence under the laws prohibiting the liquor traffic, wherein liquors are possessed which have been illegally manufactured or obtained.”

It was held by this court that mere possession of intoxicating liquor in a home does not deprive the place of its character as a private residence, or of its immunity from liquor raids, and that the prohibition as to residences is against trafficking, not possession.

This court further held that the character of a bona fide residence can only be changed so as to make it not immune from search when there is trafficking in intoxicating liquor. The mere possession of intoxicating liquor, no matter when manufactured, does not change the character of the house. It depends upon the use to which the house is put.

That there was trafficking in intoxicating liquor in a private residence may be shown either by direct evidence or by circumstance. Counsel for plaintiff in error refer to a remark of the trial judge, which appears on page 54 of the record, as follows:

“I think for the purpose of this case it may be presumed that it is a domicile, but the law says if there is liquor sold there that changes the character of it. Up to this time it may be considered as a residence. ’ ’

Counsel argue from that remark that, since the court found as a matter of evidence that the residence of plaintiff in error was a private dwelling, it was therefore, under the decision of the Bender case, immune from search and seizure under the law. We are unable to read such a finding in this casual remark of the trial court. All that the court stated is that it may be presumed that it is a domicile. Whether it retains its character as a bona fide private dwelling depends upon the further question whether the evidence justifies a finding that there was in that residence trafficking in intoxicating liquors.

Counsel for the plaintiff in error characterize the thirty-two bottles of beer found in plaintiff in error’s residence as near beer. This statement is not justified by the record. The record discloses an admission that the chemical test showed that the alcoholic content of the bottle by volume was 4.01 per cent., and that the contents were fit for beverage purposes. It was therefore properly regarded as intoxicating liquor under the laws of Ohio.

One of the defendant in error’s witnesses testified that there were six bootlegging establishments in that immediate vicinity, and that many people parked their machines in the neighborhood, and that she had seen an intoxicated man enter the home of Mr. Antorzek and come out again a few minutes later. A police officer testified that he had had the Antorzek home under surveillance for four or five months; that he had observed in one evening as many as twenty different men drive up and park their machines nearby, and enter the Antorzek home, and fifteen or twenty minutes later come out again. There was evidence that when the police officers approached the Antorzek home with a search warrant, Antorzek’s wife refused to open the door, and began to shout, and Antorzek’s son immediately ran into the kitchen with a bottle, and emptied the contents into the sink. The front and side doors were fastened with heavy wooden bars, and the rear door was bolted. It was under these circumstances that a search warrant was obtained and the thirty-two bottles of beer of intoxicating nature were found.

We are of the opinion that the trial court was justified in finding from the circumstances detailed in this case that there was trafficking in intoxicating liquor at the residence of the plaintiff in error. We adhere most faithfully and strictly to our decision in the Bender case, because only by so adhering to it can we give force and effect to the Eighteenth Amendment of the Federal Constitution without nullifying the constitutional guaranties as to the sacredness of private homes. We reiterate that the mere possession of intoxicating liquor in a private residence does not destroy its character as a private residence, that as such it is immune from searches and seizures, and that no search warrant can lawfully be issued to search such a private dwelling. A different state of the law arises when, the evidence shows that there is trafficking in intoxicating liquor in a dwelling house. When by direct or circumstantial evidence the fact that there is trafficking in intoxicating liquor at a residence is established, such residence loses its character as a private residence and is not immune from search under the law.

In the case at bar, the circumstances given in evidence justified a finding on the part of the trial judge that there was trafficking in intoxicating liquor at the residence of plaintiff in error, and the trial court was therefore correct in holding that, since there was trafficking in intoxicating liquor in said residence, the same lost its character as a private residence and became subject to search under the laws of Ohio. It would be otherwise if no evidence, direct or circumstantial, tending to show trafficking in intoxicating liquor in said residence, were introduced. In that event the mere showing that there was possession of intoxicating liquor would not be sufficient. The residence would still be regarded as a tona fide private residence, and no search warrant could be issued under the law to search such residence despite the fact that there was possession of intoxicating liquor on the premises.

We find no error in the judgment of the trial court, and the same is therefore affirmed.

Judgment affirmed.

Vickery, P. J., and Sullivan, J., concur.  