Pest v. City of Lakewood

This cause is here on error proceedings from the municipal court of the city of Lakewood, Ohio, and, in passing, we note that it is the first case that comes from that municipality to this court under the recent legislation creating a municipal court for that city (112 Ohio Laws, 65).

It appears from the record that on January 26, 1928, Frank Pest and his wife were driving an automobile through the city of Lakewood, that they were halted, and an examination made of their automobile for the purpose of ascertaining whether liquor was being transported, and that the result of the examination indicated no evidence of the transportation of liquor.

Later, after an investigation was had, and subsequent to the taking of plaintiff in error to the police station, after a search of the automobile as above noted, an affidavit was duly made charging the plaintiff in error with the transporting of intoxicating liquor, and thereupon a warrant was issued, and a hearing had, wherein a conviction was obtained, and the point is urged that the arrest and prosecution are tinctured with illegality, because the automobile was halted and the plaintiff in error taken into custody before there was an affidavit made, charging the offense, and before a warrant and arrest under the warrant and affidavit followed.

It appears that, after the time the automobile was halted, and the examination, as above noted, was made, an investigation was had which led the officers to the conclusion that plaintiff in error, and his wife, were returning from a certain place where liquor had been delivered by him, and that that was the reason that no liquor was found in the automobile, and it is upon this information that the affidavit was made, the warrant issued, and the hearing had.

We do not think that the initial act above set forth invalidated the proceedings which subsequently followed, and which resulted in a fine of $300 and costs, the sentence pronounced at the January term of the criminal branch of the municipal court of Lakewood under the warrant and affidavit alluded to above.

Therefore we proceed to examine the record to determine whether there was credible evidence under the rules of criminal law to warrant the conviction; and, adhering to the authorities in which it is laid down by the Supreme Court that the reviewing court may not reverse the judgment where the trial court has submitted to it credible evidence under the rules of criminal law, which would be sufficient to base a conviction in a criminal case, beyond the existence of a reasonable doubt, we hold that under the record there could be no hypothesis of innocence.

It is only as a matter of law that a reviewing court, on the facts of the case, can disturb the verdict and judgment of the court below, no matter what the personal opinion of the judges of the reviewing court may be. Breese v. State, 12 Ohio St. 146, 80 Am. Dec., 340; Remington v. Harrington, 8 Ohio, 507; Higgins v.Drucker, 22 C.C., 112, 12 C.D., 220; Painesville Utopia TheatreCo. v. Lautermilch, 118 Ohio St. 167, 160 N.E. 683.

The decisions in above cases apply to criminal as well as civil cases, providing the evidence is of such a character that, applying the rules of the criminal law, there is on the face of the record a legal warrant for conviction.

Holding these views, the judgment of the lower court is hereby affirmed.

Judgment affirmed.

VICKERY and LEVINE, JJ., concur.