Kane v. State

Ohio Court of Appeals

Kane v. State

177 N.E. 650, 39 Ohio App. 456, 9 Ohio Law. Abs. 72, 1930 Ohio App. LEXIS 390

CourtOhio Court of Appeals

DecidedOctober 13, 1930

DocketNo 227

StatusPublished

This text of 177 N.E. 650 (Kane v. State) is published on Counsel Stack Legal Research, covering Ohio Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Kane v. State, 177 N.E. 650, 39 Ohio App. 456, 9 Ohio Law. Abs. 72, 1930 Ohio App. LEXIS 390 (Ohio Ct. App. 1930).

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Opinions

*73 WILLIAMS, J.

There is no question that no eye witness testified that the defendant himself had actual manual possession of the liquor, but possession does not have to be possession-in hand. Possession in law means having custody and control of a chattel, either, singly or with others. It is also true that possession may be shown not only by the direct evidence of eye-witnesses, but it may also be shown by circumstantial evidence. It is also a well-established and settled principal of law in this state that where two or more persons enter into a conspiracy to commit a crime or an offense, that the act of one of the conspirators in furtherance of the conspiracy is the act of all, and if two or more persons enter into a conspiracy to violate the Crabbe Act, and in furtherance of that conspiracy one of them has possession of intoxicating liquor, such possession of one is the act of all engaged in the conspiracy. 8 O. Jur. 55.' This court applied that principle in Rudner vs. State of Ohio, 27 Oh Ap, 59. In that case Rudner was convicted of murder in the second degree for the killing of Don R. Mellett and there was no evidence in the record tending to show his presence at the scene of the crime, or his participation in any Way in the act of killing, except as a co-conspirator who was absent at the time the crime was committed.

The trial court had before it the testimony of the sheriff and the defendant, and he had a right, in the exercise of his discretion, to believe the testimony of the' sheriff. According to that testimony the defendant went to Dew Drop to get intoxicating liquor to transport to the Blue Front; on West Third Street in Cleveland. This information was received by the sheriff from the defendant himself, according to the sheriff’s testimony.

The evidence adduced by the state showed a plan to transport whiskey from Canada, to Dew Drop by airplane, and part of it on to Cleveland. It is difficult to understand how the defendant could have been at Dew Drop at the psychological moment, without some previous arrangement with co-conspirators with reference to the shipment of this whiskey, and as it could not be brought, into Sandusky County except in the possession of one of these conspirators, it follows that the court below was warranted in finding that the act of- possessing liquor ■ on the part of co-conspirators was the act of the defendant. The defendant, from his standpoint, claims in his testimony that he was innocent of any wrong, and that he. baerely, upon being requested, offered his assistance, on request of one of the parties» and if the court below had believed the de *74 testimnoy, no . doubt ¡hp would '^Lave. discharged him. Of course, if the ■ i [defendant innocently and without any in- ./ ifent^on of violating the law, merely assisted ó'thers in helping to get an automobile out y,;,i$liich was stuck in the ice, it could under ptp' circumstances make .him guilty of a lláme.. The defendant made conflicting r,V Statements as to his whereabouts immed"Viately before the alleged offense and in ex-l/'^yialning his presence at Dew Drop. Considerable doubt was cast upon his testimony v"jh,this way. The testimony of the sheriff '■-tfaiily contradicted that of the defendant ! mahy particulars and gave rise to the ^Mnf^rence of cdnspiracy as above stated. ^ í,W£ have no hesitation in saying that the Íí'.¡ÍMgihent of guilty pronounced by Judge " 'Qvei'meyer, was such as was warranted, if ■ ;$|© believed the testimony of the sheriff and §i r,did not believe the testimony of the de- |; ifendant. The trial judge saw the witnesses ff ife&ify and therefore had greater oppor4, tunity to form an accurate opinion as to i-.tjhejr credibility, and we can not say that |:;?the' decision and judgment are manifestly ^¡.’against the weight of the evidence.

' The judgment will therefore be affirmed.

Richards, J, concurs. Lloyd, J, dissents.

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*73 WILLIAMS, J.

There is no question that no eye witness testified that the defendant himself had actual manual possession of the liquor, but possession does not have to be possession-in hand. Possession in law means having custody and control of a chattel, either, singly or with others. It is also true that possession may be shown not only by the direct evidence of eye-witnesses, but it may also be shown by circumstantial evidence. It is also a well-established and settled principal of law in this state that where two or more persons enter into a conspiracy to commit a crime or an offense, that the act of one of the conspirators in furtherance of the conspiracy is the act of all, and if two or more persons enter into a conspiracy to violate the Crabbe Act, and in furtherance of that conspiracy one of them has possession of intoxicating liquor, such possession of one is the act of all engaged in the conspiracy. 8 O. Jur. 55.' This court applied that principle in Rudner vs. State of Ohio, 27 Oh Ap, 59. In that case Rudner was convicted of murder in the second degree for the killing of Don R. Mellett and there was no evidence in the record tending to show his presence at the scene of the crime, or his participation in any Way in the act of killing, except as a co-conspirator who was absent at the time the crime was committed.

The trial court had before it the testimony of the sheriff and the defendant, and he had a right, in the exercise of his discretion, to believe the testimony of the' sheriff. According to that testimony the defendant went to Dew Drop to get intoxicating liquor to transport to the Blue Front; on West Third Street in Cleveland. This information was received by the sheriff from the defendant himself, according to the sheriff’s testimony.

The evidence adduced by the state showed a plan to transport whiskey from Canada, to Dew Drop by airplane, and part of it on to Cleveland. It is difficult to understand how the defendant could have been at Dew Drop at the psychological moment, without some previous arrangement with co-conspirators with reference to the shipment of this whiskey, and as it could not be brought, into Sandusky County except in the possession of one of these conspirators, it follows that the court below was warranted in finding that the act of- possessing liquor ■ on the part of co-conspirators was the act of the defendant. The defendant, from his standpoint, claims in his testimony that he was innocent of any wrong, and that he. baerely, upon being requested, offered his assistance, on request of one of the parties» and if the court below had believed the de *74 testimnoy, no . doubt ¡hp would '^Lave. discharged him. Of course, if the ■ i [defendant innocently and without any in- ./ ifent^on of violating the law, merely assisted ó'thers in helping to get an automobile out y,;,i$liich was stuck in the ice, it could under ptp' circumstances make .him guilty of a lláme.. The defendant made conflicting r,V Statements as to his whereabouts immed"Viately before the alleged offense and in ex-l/'^yialning his presence at Dew Drop. Considerable doubt was cast upon his testimony v"jh,this way. The testimony of the sheriff '■-tfaiily contradicted that of the defendant ! mahy particulars and gave rise to the ^Mnf^rence of cdnspiracy as above stated. ^ í,W£ have no hesitation in saying that the Íí'.¡ÍMgihent of guilty pronounced by Judge " 'Qvei'meyer, was such as was warranted, if ■ ;$|© believed the testimony of the sheriff and §i r,did not believe the testimony of the de- |; ifendant. The trial judge saw the witnesses ff ife&ify and therefore had greater oppor4, tunity to form an accurate opinion as to i-.tjhejr credibility, and we can not say that |:;?the' decision and judgment are manifestly ^¡.’against the weight of the evidence.

' The judgment will therefore be affirmed.

Richards, J, concurs. Lloyd, J, dissents.

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177 N.E. 650, 39 Ohio App. 456, 9 Ohio Law. Abs. 72, 1930 Ohio App. LEXIS 390, Counsel Stack Legal Research, https://law.counselstack.com/opinion/kane-v-state-ohioctapp-1930.

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