
    EVIDENCE — INTOXICATING LIQUORS.
    [Fulton (6th) Circuit Court,
    November 11, 1911.]
    Wildman, Kinkade and Richards, JJ.
    
      Benjamin E. Hinz v. State of Ohio.
    Conviction for Soliciting Orders for Intoxicating Liquors not Set Aside on Review if Inference of Guilt not Rebutted by Accused.
    The inference may reasonably be drawn that the manager or person in charge of an office, from which emanate letters or circulars soliciting trade, has knowledge of such solicitation . and is responsible therefor; and where such an inference as to the solicitation by mail in “dry” territory of orders for intoxicating liquors was not modified or rebutted by evidence, and the defendant remained silent when confronted by evidence of that character, a reviewing court is not justified in holding that a finding of guilty by the court below was so clearly against the weight of the evidence as to require a reversal of the judgment.
    [Syllabus by the court.]
    Error to common pleas court.
    
      Ben W. Johnson, for plaintiff in error:
    Failure of proof, Uayner v. State, 83 Ohio St. 178 [93 N. E. Rep. 900] ; Moore v. State, 2 Ohio St. 500.
    Errors and irregularities, Tate v. State, 76 Ohio St. 537 [81 N. E. Rep. 973; 10 Ann. Cas. 949]; Methard v. State, 19 
      Ohio St. 363; Kappe-s v. State, 26 O. C. O. Ill (5 N. S. 183) ; Fike v. State, 25 O. C. C. 554 (4 N. S. 81); Carey v. State, 70 Ohio St. 121 [70 N. E. Rep. 955] ; Beaker v. State, 18 Dec. 44 (5 N. S. 364); Garrison v. State, 17 Dec. 159 (4 N. S. 277); Volk v. Westerville, 17 Dec. 776 (3 N. S. 241); Ford v. Osborn-e, 45 Ohio St. 1 [12 N. E. Rep. 451; 4 Am. St. Rep. 507] ; Olinger v. McGuffey, 55 Ohio St. 661; Shutters v. Toledo, 57 Ohio St. 667; Stewart v. Gordon, 60 Ohio St. 170 [53 N. E. Rep. 797] ; Toledo F. & F. By. v. Bailway, 79 Ohio St. 136 [86 N. E. Rep. 515]; Potter v. Potter,,27 Ohio St. 84; Farrer v. State, 2<irOhio Ohio St. 54.
    Insufficiency of affidavit, Fouts v. State, 8 Ohio St. 98; Hagan v. State, 10 Ohio St. 459; Greene, In re, 7 O. P. D. 345 [52 Fed. Rep. 104]; Groenland v. State, 6 Dec. 313 (4 N. P. 122), affirmed, no op., State v. Groenland, 57 Ohio St. 653; Aylmore v. State, 11 Dec. Re. 900 (30 Bull. 376); 2 Woollen and Thornton, Int. Liq. Secs. 860, 861; Hayner v. State, 83 Ohio St. 178 [93 N. E. Rep. 900] ; Lake Shore & M. S. By. v. Reynolds, 11 Circ. Dec. 701 (21 R. 403); Adams v. Stdte, 25 Ohio St. 584; Newport <& C. Bridge Co. v. Jutte, 27 O. C. C. 541 (6 N. S. 189); Uihlein v. Gladieux, 74 Ohio St. 232 [78 N. E. Rep. 363] ; Anderson v. State, 22 Ohio St. 307.
    Accused not guilty even as aider and abetter, State v. Munson, 25 Ohio St. 383; Hartshorn v. State, 29 Ohio St. 636.
    Mere knowledge and consent not sufficient, State v. Tally, 102 Ala. 125 [15 So. Rep. 722] ; State v. Jones, 115 la. 113 [88 N. W. Rep. 196]: United States v. Gooding, 25 V. S. (12 Wall.) 460 [6 L. Ed. 693] ; Omer v. Commonwealth, 95 Ky. 353 [25 S. W. Rep. 594] ; Warden v. State, 24 Ohio St. 146; Baker v. State, 12 Ohio St. 214; State v. Munson, 25 Ohio St. 383; State v. Snell, 5 Dec. 670 (2 N. P. 55) ; Watha v. State, 34 O. C. C. 60; Connatighty v. State, 1 Wis. 159 [60 Am. Dee. 370]; Spear v. Hiles, 67 Wis. 361 [30 N. W. Rep. 511] ; State v. Douglas, 44 Kan. 618 [26 Pac. Rep. 476] ; White v. People, 81 111. 333; Drury v. Territory, 9 Old. 398 [60 Pac. Rep. 101] ; Jones v. People, 166 111. 264 [46 N. E. Rep. 723] ; True v. Com
      
      monwealth, 90 Ky. 651 [14 S. W. Rep. 684}; Clem- v. State, 33 Ind. 418; Plummer v. Commonwealth, 64 Ky. (1 Bush) 76.
    Evidence of guilty participation, Parker v. State, 4 Ohio St. 563; State v. Fuller, 32 O. C. C. 465 (13 N. S. 405); Schultz v. State, 32 Ohio St. 277; State v. Berry, 32 O. C. O. 250 (13 N. S. 206).
    Arbitrary disregard of undisputed testimony, Sexton v. Todd, Wri. 316.
    No judicial notice of local option elections, Geisse v. State, 32 O. C. C. 560 (13 N. S. 385) ; Combs v. State, 81 Ga. 780 [8 S. E. Rep. 318] ; Jones v. State, 67 Md. 256 [10 Atl. Rep. 216] ; Puckett v. State, 71 Miss. 192 [14 So. Rep. 452] ; Crigler v. Commonwealth, 120 Ky. 512 [87 S. W. Rep. 276]; Wilson v. State, 35 Ark. 414; People v. Adams, 95 Mich. 541 [55 N. W. Rep. 461] ; People v. Bates, 61 App. Div. 559 [71 N. Y. Supp. 323] ; Slate v. Chambers, 93 N. G. 600; State v. Searcy, 111 Mo. 236 [20 S. W. Rep. 186] ; Long v. State, 165 Ala. 101 [51 So. Rep. 636]; Randall v. Tillis, 43 Fla. 43 [29 So. Rep. 540] ; Stale v. Van Vliet, 92 la. 476 [61 N. W. Rep. 241] ; Gay v. Eugene, 53 Ore. 289 [100 Pac. Rep. 306] ; Brown v. State, 11 Ohio 276; Pittsburgh, C. & St. L. Iiy. v. Moore, 33 Ohio St. 384 [31 Am. Rep. 543]; •Urmsion v. State, 73 Ind. 175; Herr, mann v. Cincinnati, 6 Gire. Dec. 151 (9 R. 357); affirmed, no op., Herrmann v. Cincinnati, 52 Ohio St. 676; Bolton v. Cleveland, 35 Ohio St. 319; Massa v. Stale, 2 Circ. Dee. 6 (3 R. 9) ; Nelson v. Berea, 12 Circ. Dec. 329 (21 R. 781); affirmed, no op., Nelson v. Berea, 66 Ohio St. 668; Toledo v. Libbie, 8 Circ. Dec. 589 (19 R. 704), affirmed, no op., Toledo v. Libbie, 51 Ohio St. 562.
    
      Chittenden v. Columbus, 26 O. O. C. 531 (5 N. S. 84), affirmed, no op., Chittenden v. Columbus, 71 Ohio St. 516; Smith y. Lothschultz, 20 Dee. 390 (10 N. S. 257); Joyce, Int. Liq. Sec. 418; 2 Woollen & Thornton, Int. Liq. Secs. 860, 861; Stick v. State, 13-23 O. C. C. 392 (3 N. S. 611).
    The Ilayner case not an authority to sustain the present affidavit, Ilayner v. State, 83 Ohio St. 178 [93 N. E. Rep. 900] ; State v. Messenger, 63 Ohio St. 398 [59 N. E. Rep. 105] ; State-
      v. Smiley, 8 Circ. Dee. 117 (14 E. 660); State v. Pugh, 43 Ohio St. 98 [1 N. E. Eep. 439].
    
      J. B. Templeton, Pros. Atty., and J. A. White, for defendant in error:
    Mail orders from dry counties, Hayner v.. State, 83 Ohio St. 178 [93 N. E. Eep. 900]; State v. Mattingly, 79 Ohio St. 79 [86 N. E. Eep. 353] ; Lynch v. State, 31 O. G. C. 352 (12 N. S. 330); State v. Hinkelman, 32 O: C. C. 1 (13 N. S. 321); Stale v. Berry, 32 O: C. O. 250 (13 N. S. 206) ; Weamr v. State, 74 Ohio St. 53 [77 N. E. Eep. 273]; Geisse v. State, 32 O. G. G. 560 (13 N. S. 385); McKelvey, Evidence 330; State v. MulUn, 78 Ohio St. 358 [85 N. E. Eep. 556] ; Delamater v. Dakota, 205 U. S. 93 [51 L. Ed. 724] ; Dailey, v. State, 4 Ohio St. 57; Eldredge v. State, 37 Ohio St. 191; State v. Bailey, 50 Ohio St. 636 [36 N. E. Eep. 233] ; Carey v. State, 70 Ohio St. 121 [70 N. E. Eep. 955] ; Schultz v. State, 32 Ohio St. 276; State v. Fuller, 32 O. C. C. 465 (13 N. S.- 405); Scheu v. State, 83 Ohio St. 146 [93 N. E. Eep. 969] ; State v. Walder, 83 Ohio St. 68 [93 N. E. Eep. 531]; Carmack v. State, 32 O. C. C. 46 (13 N. S. 362).
    Disturbing of verdict, Dean v. King, 22 Ohio St. 118; McGatrick v. Wason, 4 Ohio St. 566; French v. Millard, 2 Ohio St. 53; Muhlenberg v. Florence, 5 Ohio 245; Lewis v. Bank, 12 Ohio 151 [40 Am. Dec. 469] ; Stewart v. State,' 1 O. S. 66; Tate'Y. Stale, 76 Ohio St. 537 [81 N. É. Eep. 973; 10 Ann. Gas. 949]; Hess v. Stale, 5 Ohio 5 [22 Am. Dec. 767] ; Simon V. Mooney, 12 Circ. Dec. 73- (22 E. 271); Price v. Coblitz, 12 Circ. Dec. 34 (21 E. 732) ; Lake Shore <& M. S. By. v. Goodwin, 12 Circ. Dec. 537; Gebaur v. Vesper, 10 Circ. Dec. 820 (20 E. 711); Andreivs v. Watson, 12 Circ. Dec. 692; Blaney v. State, 9 Gire. Dec. 616 (17 E. 486) ; Breese v. State, 12 Ohio St. 146 [80 Am. Dec. 340] ; Neifeld v. State, 13-23 O. C. C. 246 (3 N. S. 551); Evans v. State, 13-23 O. C. C. 103 (3 N. S. 23), affirmed, no op., Evans v. State, 68 Ohio St. 700; Baum v. State, 27 O. G. C. 569 (6 N, S. 515).
    
      
      Afiirmed, no op., Hinz v. State, 86 O. S. 348.
    
   WILDMAN, J.

The plaintiff in error, Benjamin E. Hinz, was convicted before George B. ITeise, mayor of the village of Wauseon in this county, after a trial before him, of soliciting orders for the sale of intoxicating liquors within said county by means of a communication sent by mail by the said Benjamin E. Hinz from Toledo, Ohio, to one J. C. Paxson, the complaining witness, on or about March-29, 1911, the sale of intoxicating liquors as a beverage being at th'at time prohibited and unlawful in said county. The prosecution and conviction were under Gen. Code 13223 of Ohio. Said conviction and the sentence of said mayor thereon were affirmed by the court of common pleas in -proceedings in error instituted therein. To reverse the judgment of affirmance this proceeding is pending before us.

Numerous questions were raised in the trial court by the defendant there, and'exceptions taken to rulings, but the ^contentions of vital importance and the ones calling for most careful and serious consideration by us are those relating to the guilt or innocence of the defendant of the matters involved in the accusation against him. There seems no question under the evidence submitted to the trial court that the section referred to had been violated by the distribution of printed matter in the village of Wauseon while the sale of intoxicating liquors as a beverage was unlawful; but that the defendant was implicated in such soliciting, either directly or indirectly, is disputed, and upon the issue so raised evidence was offered in the trial court by both state and defendant. It is earnestly urged by the plaintiff in error that the finding by the mayor is so clearly against the weight of the evidence that it should not stand.

The evidence is largely circumstantial. The testimony of Mr. Paxson discloses the receipt by him from the post office at Wauseon of a printed circular letter, over the printed signature of the Schlitz Brewing Company, soliciting orders for beer manufactured or furnished by said company. By instruction in this letter, orders, if given, were to -be sent to a street address in the city of Toledo, nt which address, as the testimony discloses, was an office of said brewing company, occupied and conducted by said Hinz as the manager thereof or local agent of said company, there being no evidence indicating that said company had any other office or place of business in said city of Toledo. The communication so received, by Mr. Paxson enclosed, a price list of beer manufactured by said company, and order blank directed to said company at its said office in Toledo, from which address any orders were to be filled. The envelope containing this communication bore the Toledo postmark. Soon after the defendant’s arrest and while in charge of the sheriff, Fred Grandy, of Fulton county, he volunteered certain statements to Grandy, as testified to on the trial by the latter, with, reference to the soliciting of business in so-called dry territory. I will not attempt to detail the language said to have been used by him, but in substance he stated, as asserted by Grandy, that be had refused personally to solicit business in sporting houses or territory where the sale of liquor was prohibited or to send men into such territory or to such places, but that he had consented to the sending to some persons, whose names he does not appear to have disclosed, of ' solicitations for business' in dry territory. Other evidence was offered upon both sides, but I .will not attempt its review.

In view of all the facts disclosed, whatever might be our conclusions as 'to the guilt or innocence of the defendant, were we sitting as a trial court, we do feel justified in holding that the finding of the mayor is so clearly against the evidence or its weight as to justify a reversal. As a general inference, reasonably to be drawn from our observation of the conduct of business, we think it may fairly be said that the manager or person in charge of an office through which passes or from which emanates letters or circulars soliciting trade, has knowledge of such solicitation and is responsible therefor. This inference is, of course, open to qualification os. rebuttal by evidence, but in the absence of evidence which the trial court was bound to believe a finding in accordance with such principle would be justified under the facts in this case. "While there was evidence offered by the defendant in a deposition of one Abrams, a manager of agencies for the brewing company, it contained so many reservations of facts, the witness declining to answer upon the ground as given that the answer Fight tend to criminate himself, and the statements were in other respects, many of them, .so vague and general, that we cannot say that the trial court was not justified in disbelieving the testimony of said witness and rejecting it from consideration. Iiinz himself attempted no other or further explanation of the matter involved in the charge against him than as I have already stated. While no presumption can be drawn against him from the fact that he did not testify upon the witness stand while on trial, the fullest .opportunity was apparently afforded him to enter into any desired explanation or detail as to the matter of accusation against him when in the conversation with the sheriff. In view ■of this fact we see no reason why the ordinary principle should not apply, that inferences may be legitimately drawn against ■one from his silence or unreasonable or inadequate statements when called upon, by circumstances or questions, to explain his conduct. A like inference is properly drawn from the refusal or neglect to produce in court evidence available to one in his defense.

A not inapt illustration of this general principle is found in the rule asserted in Mothard v. State, 19 Ohio St. 363, and repeatedly announced in other adjudications in this and other states, that an inference of guilt may be drawn from the unexplained possession of stolen goods soon after the commission of the larceny. Such a presumption or inference is, of course, not indisputable, but one which may fairly be applied under proper circumstances in the absence of adequate rebutting or explanatory evidence.

As to the various other matters urged by counsel for plaintiff in error as ground for reversal, we deem it sufficient to say that we find no errors in the record justifying the setting .aside of the evidence of the trial court and the reversal of the ¡sentence. The judgments of the mayor and the common pleas ..court are affirmed.

Kinkade and Richards, JJ., concur.  