#### City of Columbus, Appellee, *v.*Lewis, Appellant.

(No. 3852

Decided February 19, 1946.)

*477
      *Mr. J obi L. Davies,*city attorney, and *Mr. Glenn E. Kemp,*for appellee.

*Mr. E. E. Addison*and *Mr. Abraham Gertner,*for appellant.

Miller, J.

This matter comes before this court on appeal on questions of law from a judgment of the Municipal Court of Columbus, wherein the defendant was convicted of violating the provisions of Section 1089-1 of the Ordinances of the City of Columbus, Ohio. The ordinance provides as follows:

“Whoever shall within the city of Columbus have in his possession, or in his custody, or under his control, any ticket, check, writing, slip, paper or document, which represents or is a memorandum of, or is evidence of, or is intended to be used as a memorandum or evidence of, or which is designed or intended to be used in the process, of making, settling, paying, registering, evidencing, or recording, a number of shares or an interest in a lottery, ‘policy,’ or scheme of chance, by whatever name, style, or title denominated or known, whether located or to be drawn, paid, or carried on within or without this city, shall be guilty of a misdemeanor * *

The affidavit charges that the defendant ‘ ‘ did unlawfully have in his possession memorandum slips of a number of shares in a scheme of chance in violation of Section 1089-1, city ordinance.”

The record discloses that on the 31st day of March 1945, at about 11:00 a. m. the accused was driving a passenger automobile in the city of Columbus, Ohio. Two members of the vice squad of the Columbus Police Department noticed the defendant and followed him in their car for a short distance, when the defend*478ant, realizing lie was being followed by tbe police, pulled his ear to tbe curb and aslced them wbat they wanted. Tbe officers bad no search warrant at tbe time, but tbe defendant told tbe officers to search him and bis car if they so desired, as be bad nothing illegal in bis possession. Tbe officers made tbe search and found concealed under tbe beater of tbe defendant’s car a package of slips which were introduced in evidence. Tbe defendant made a motion to suppress tbe evidence on tbe ground that it was illegally obtained. Tbe court overruled tbe defendant’s motion, and we think properly so, because tbe defendant waived bis constitutional rights by suggesting that tbe officers make tbe search.

At tbe close of tbe city’s case, tbe defendant moved for a dismissal for failure of proof, which motion was also overruled.

We are of the opinion that tbe court should have sustained this motion. A careful examination of tbe record discloses that tbe prosecution failed to prove that tbe package of paper writings removed from tbe defendant’s automobile contained any memoranda or writing in violation of Section 1089-1 of tbe ordinances of tbe city of Columbus, Ohio.

Tbe only evidence in tbe record with reference to this package is tbe following:

“Q. I will band you a bunch, or some paper, with some writing and numbers on it, wbat we call slips which I will ask tbe stenographer to mark. I will ask tbe stenographer to mark this city’s exhibit ‘A,’ and I will ask you, officer, if you can identify that exhibit. A. These are tbe number slips that I removed.

“Mr. Gertner: Object to tbe conclusion those are number slips and ask it be stricken from tbe record.

“Tbe Court: I will sustain tbe objection.

“Q. All right. Can you identify exhibit ‘A?’ A. It’s *479the paper I removed froin the heater hose in the defendant’s automobile.

“Q. What, if anything, are those paper slips in your hand? A. What is commonly known as a number slip.

“Mr. Gertner: Object to the conclusion and ask it be stricken from the record. What it is commonly known as is not the question. Your Honor, we are not going to convict this man on hearsay evidence or what people generally know, or what is commonly known as. The problem is, is he guilty of a specific offense prohibited by this specific ordinance. Common knowledge is immaterial and not admissible.

“The Court: Sustain the objection to that part of the answer designating that it is a number slip.”

That was all the evidence offered to establish the illegality of the city’s exhibit “A.”

In the case of *City of Toledo*v. *Johnson,*72 Ohio App., 46, 50 N. E. (2d), 675, the court properly held:

“In order to sustain a conviction on a charge of unlawfully engaging ‘in a game of chance for money, to wit, number game,’ in violation of an ordinance making it unlawful to engage in a game of chance, there must be proof that a ‘number game’ is a game or scheme of chance or gambling, there being no such ‘game of chance’ recognized by statute or ordinance as a ‘number game.’ ”

We quote from the opinion of Overmyer, J., at pages 48 and 49:

“* * * No description of any kind is given of the ‘slips’ nor the purposes for which they are used nor that they have any connection with gambling. * * *

“The prosecution herein was laid under an ordinance which does not define what shall constitute a game of chance, and the affidavit merely alleged the defendant engaged ‘in a game of chance for money, to wit, a *480number game.’ No proof whatever was offered to show what a ‘number game’ is or that a number game ‘is a game of chance’ for money, and we are not aware that the courts of Ohio have waived the requirements of criminal law and procedure — whether it is in a gambling prosecution or for burglary, forgery or murder— that the essential elements of the crime charged must be proven. The attack here made is not upon the sufficiency of the affidavit to charge an offense but upon the taking of judicial notice by the lower courts of the guilt of defendant of the essential elements of the offense charged, in lieu of proof thereof.

“* * * we have not reached that point where it is unnecessary to prove in a criminal case that a man has committed a crime in order to convict him of it, as against a plea of ‘not guilty.’ ”

We find there is no evidence that the slips in city’s “exhibit A” are slips which represent, or are memoranda of, or are evidence of, or are intended to be used in the'process of, making, settling, paying, registering, evidencing or recording a scheme of chance.

There was nothing upon which to predicate the finding of guilt except the conclusions of the witness, which the trial court had ruled to be improper and had ordered stricken from the record.

The presumption of the innocence of the defendant was not overcome by the evidence, and the motion to dismiss should have been sustained.

The judgment is reversed, the defendant is ordered discharged and the cause remanded for execution.

*Judgment reversed.*

Hornbeck, P. J., and Wiseman, J., concur.