Ashton v. State , 35 Ohio App. 37 ( 1930 )

Paul Ashton was charged in the court of probate of Allen county with the unlawful possession of twenty-six bottles of the fluid extract of ginger. Upon trial, he was found guilty as charged, and sentenced to pay a fine and the costs of prosecution. The court of common pleas affirmed the conviction, and Ashton brings the case into this court upon a petition in error, seeking a reversal of those judgments.

On the 2d day of January, 1929, Ashton was occupying as a grocer a certain storeroom in South Lima; his stock of goods consisted of thirty-six bottles of the fluid extract of ginger, twenty articles of canned goods, and two or three boxes of cigars. On that day certain public officers went to said store; Ashton was there, also several customers. The officers searched the premises and found a carton containing said thirty-six bottles of the fluid extract of ginger, a number of empty bottles which had contained fluid extract of ginger, several cartons similar to the one containing said thirty-six bottles, a number of empty pop bottles, several empty glasses on a table in a rear room, and the canned goods and cigars aforesaid. The officers had a conversation with Ashton, and he, according to their testimony, stated "that he was not selling anything but ginger in the way of drinks."

Said fluid extract of ginger contained from 80 to 85 per cent. of alcohol by volume.

The United States Pharmacopoeia classifies fluid extract of ginger as unfit for beverage purposes.

Certain witnesses called by Ashton testified that fluid extract of ginger is unfit for use for beverage purposes. Certain witnesses called by the state of Ohio testified that said fluid was fit for use for beverage purposes, especially when diluted. Paul Ashton did not testify.

The foregoing evidentiary facts are the salient and controlling ones in this case. The questions are:

First. Did the state of Ohio prove beyond a reasonable doubt that the fluid extract of ginger described in the affidavit is fit for use for beverage purposes?

Second. Did the state of Ohio prove beyond a reasonable doubt that Ashton had the possession of said fluid extract of ginger with the intention of using it in violation of law?

The first proposition is easily disposed of.

In Breese v. State, 12 Ohio St. 146, 80 Am. Dec., 340, our Supreme Court held: "A judgment will not be reversed because the verdict is contrary to the evidence, unless it is manifestly so, and the reviewing court will always hesitate to do so where the doubts of its propriety arise out of a conflict in oral testimony."

In the case at bar, a sharp conflict exists in the oral testimony upon the issue of the fitness of fluid extract of ginger for use for beverage purposes. Different minds, in weighing it, might readily reach different conclusions. True, the United States Pharmacopoeia classifies said fluid as unfit for beverage purposes, but it does not classify said fluid as unfitfor use for beverage purposes. Furthermore, such classification is not conclusive, and manifestly the trial judge, who was the trier of the fact, was not bound by it.

We have carefully read the entire record and are of the opinion that the finding of the trial court is not manifestly against the weight of the evidence in this respect. Our answer, therefore, to the first question, is in the affirmative.

Turning now to the second proposition. It is undoubtedly true that the mere possession for nonbeverage purposes of the fluid extract of ginger, containing one-half of one per cent. or more of alcohol by volume, does not in and of itself constitute a violation of Section 6212-13 et seq., General Code, commonly known as the Crabbe Act. We quote the pertinent portion of Section 6212-15, General Code: "Liquor, and liquor preparations and compounds for non-beverage purposes * * * may be * * * possessed * * * but only in accordance with the provisions of Title II of the act of Congress known as the `National Prohibition Act,' passed October 28, 1919."

But when such possession is coupled with an intent to use said fluid in violation of law, then it is certainly true that such possession does fall under the ban of the Crabbe Act. To hold otherwise would be to destroy the force and effect of certain provisions of Section 6212-16, General Code, which, so far as pertinent here, reads as follows: "It shall be unlawful to have or possess any liquor * * * intended for use in violation of law."

Of like import is the pronouncement in Shy v. State, 17 Ohio App. 147. In this case, the court held:

"The mere possession of articles in a stock of merchandise capable of both legitimate and illegitimate use affords no presumption of a design or intent upon the part of the possessor thereof to use or dispose of the same for an illegal purpose.

"Where, however, such possessor actually designs and intends to dispose of such property as component parts of a still for the manufacture of intoxicating liquors and knowingly offers the same for sale for such purpose, then the possession of such articles becomes illegal."

Section 6212-14, General Code, so far as pertinent here, provides: "In the interpretation of this act the word `liquor' or the phrase `intoxicating liquor' shall be construed to include * * * any liquid or compound whether or not same is medicated, proprietary, or patented, and by whatever name called, containing one-half of one per cent. or more of alcohol by volume which is fit for use for beverage purposes."

Section 6212-15, General Code, provides: "No person shall, after the passage of this act, * * * possess * * * any intoxicating liquors * * * except as authorized in this act * * *."

Obviously, the fluid extract of ginger described in the affidavit is "liquor" and "intoxicating liquor" within the meaning of the Crabbe Act.

In the instant case there is abundant evidence tending to prove that Ashton had the fluid extract of ginger in his possession for the purpose of selling it as a beverage. He was not a grocer in any sense of that word; his stock of merchandise, if such it may be called, belies such a thought. The surrounding circumstances speak louder than words and plainly spell "bootlegger." Our answer to the second question obviously is in the affirmative.

Upon the whole case we are unanimously of the opinion that Ashton had a fair trial.

Holding these views, it follows that the judgments of the courts below should be affirmed.

Judgments affirmed.

HUGHES and CROW, JJ., concur.