Dosio v. State (34 Ohio App. 384, 1928)

SumrvAír, P. J.

This cause is here on error from the criminal branch of the municipal court of Cleveland, and it appears that the defendant below, Ercole Dosio, was tried and convicted on an affidavit charging him with the unlawful possession of liquor, and he was sentenced to pay a fine of $500 and costs. The case is here upon the theory that under the record the defendant was not guilty because the possession of the liquor does not reach the question of control to the extent laid down by the authorities.

There are cited numerous authorities to show that one may not be held in law for the unlawful possession of intoxicating liquor unless there is some evidence that the person charged has some control, either directly or indirectly, of the liquor.

We have no quarrel with the authorities cited, because, without some control of the property, one can not have possession of any chattel. In other words, one cannot unlawfully possess intoxicating liquor if the facts and circumstances show that he had no knowledge of the existence of the liquor; but, even though the evidence is conflicting, though reaching the requirements of the rules of the criminal law, if there are facts and circumstances to show that knowledge of the existence of the liquor and the location of the same was in possession of the defendant, it then follows as a natural deduction that he has control of it. In other words, it is a question of fact whether, under all the circumstances of the case, there is such an unlawful possession of the liquor, even though it be but a circumstance that in its logic leads to the point of control, then, if there so be, it is sufficient to convict, if the record is strong enough to satisfy the rules of criminal law upon the question of reasonable doubt and the hypothesis of innocence.

After reading the record in the case, we have come to the conclusion that the question of possession and .control was a question of fact to be determined by the court below, and, under the rules laid down for a reviewing court, the judgment can only be disturbed where it is clearly and manifestly against the weight of the evidence, or where the evidence is insufficient to convict upon such question as possession and control, or possession.

We cannot say, in the present case, that the evidence does not satisfy the demands of the criminal law, or that the verdict is clearly and manifestly against the weight of the evidence. In the instant case it appears from credible evidence that a whisky glass was found upon the counter, that it smelled of liquor, and that in the washroom, directly back of the store, there was a toilet, and in the flushing box of the toilet was found a quantity of whisky. This evidence as to the glass on the counter smelling of liquor and the receptacle containing the liquor, in the toilet, as above noted, tended to show, not only possession, but control, to say the least. There are other facts and circumstances in the case of such a corroborative nature that it must be said, taking all the record into consideration, that it reaches the demands of the criminal law as to the rules of evidence.

Applying the rules laid down by the Supreme Court that a reviewing court can only reverse on the weight of the evidence where projecting from the record there is some error that shocks the senses, which shows that a grievous error has been committed, and, finding no such situation existing in the case under consideration, the judgment of the lower court will be affirmed.

Judgment affirmed.

Vickery and Levine, JJ., concur.