
    PROSECUTION FOR POSSESSION OF INTOXICATING LIQUOR.
    Common Pleas Court of Warren County.
    William Reif v. The State of Ohio.
    Decided, October, 1925.
    
      Possession of Intoxicating Liquor — Breaking of Glass and a Suspicious Smell not Prima Facie Evidence of — Section 6175 Does not Apply to Section 6212-15.
    In a prosecution for having unlawful possession of intoxicating liquor a prima facie case is not made out by evidence of the breaking of glass in the room where defendant was found together with a fluid on the floor which the arresting officers, judging from the smell alone, testified was.whiskey.
   Wright, J.

This case comes before the' court, upon the petition in error, from the mayor’s court of the village of Lebanon, Ohio, the plaintiff in error having been convicted in the mayor’s court and fined on an affidavit charging him with unlawful possession of intoxicating liquor. The only question presented for consideration is whether the evidence sustained the charge. ■ The charge in this case is possession of intoxicating liquors.

The evidence is that when Thomas D. Fraser and Alfred1 C. Brant approached a slaughterhouse northwest of Lebanon they heard, according to their testimony, the breaking of some glass; that upon entrance of the slaughterhouse they found perhaps five young men of whom the defendant, Reif, was one, and, according to their testimony, found a fluid upon the floor. This fluid they attempted to mop up and, from the smell, one'of the officers testified it was whiskey; the other testified that it smelled like whiskey. The evidence does not disclose that the officers made their entrance of said slaughterhouse pursuant to a search warrant.

The two officers were permitted to testify as to the order without any qualification, as far as the record shows, as to their ability to determine whiskey by odor. They may be the best of experts on this question, but the record shows no evidence of same..

The trial court permitting hearsay testimony, and the attempt on the part of the state’s attorney to compel the defendant to testify against himself, call for at least a mild protest, this court suggesting that the same rules of evidence govern in a liquor magistrate’s court as apply in a court of record.

There is no evidence, so far as the record is concerned, that the property where the fluid was found was in the possession and control of William Reif except that fact that he was watering his chickens there, the record evidence showing' the property was in the possession of Reif Brothers, Charles and David Reif, there being no evidence that Reif Brothers had ceaspd to conduct a meat market — had ceased to use the slaughterhouse.

The affidavit in this ease is based on Section 6212-15, which is a part of the lawr passed under the Constitutional Amendment prohibiting liquor manufacture, sale and possession. The state in this ease maintains that the evidence of the breaking of glass and the finding of a fluid upon the floor make a prima facie ease of the possession of intoxicating liquor .under Section 6175. •

There is no question but what if the breaking wmre shown to have been committed by the said William Reif that there would be some evidence against him. This court holds, however, that it would not amount to a prima facie case by reason of the fact that Section 6175 does not apply to Section 6212-15, it having been enacted as Section 14 of an act to provide for the enforcement of local option laws, its origin being found in 98 O. L., pages 12 et seq. The evidence of the state does not bring the breaking of the bottle to the defendant.

This court is of opinion that the record evidence of what the fluid -was amounts to nothing.

This court is of opinion that the magistrate erred in overruling the motion of defendant, William Reif, interposed by him at the end of the state’s case, to dismiss the charge against him.

The finding and judgment of the magistrate is therefore reversed and defendant, William Reif, is discharged.

Draw entry accordingly.  