The American issue. [volume] (Westerville, Ohio) 1912-19??, 1923-10-05
IMPORTANT COURT DECISIONS
Edited by Boyd P. Doty
Attorney World League Against Alcoholism

A COMPLAINT ALLEGING
UNLAWFUL POSSESSION
OF INTOXICATING LILO.
UOR NEED NOT ALLEGE
THAT SAME WAS POS.
SESSED FOR BEVERAGE
PURPOSES
The foregoing tide is the gist oil
the opinion of the Supreme Court OF
Ohio in the case of KRUSOCZKY v
THE STATE OF OHIO, in Cause
No. 1896, decided June 20, 1923.
In the course of the opinion many
interesting points were touched upon
which will be of value to prosecuting
attorneys, both state and Federal, and
which involve an Interpretation and APP
plication of both Federal and Ohio
Constitutions. They are therefore
quoted, together with the Ohio
Statutes involved in the case.
The Eighteenth Amendment pro-
vides:
AFTER one year from the ratification
of this article, the manufacture, sale
or transportation of Intoxicating liq-
uors within, the importation thereof
into, or the expectation thereof from
the United States and all territory SUBJ
ject to the jurisdiction thereof for bev-
erage purposes is hereby prohibited.
"The Congress and the several states
shall have concurrent power to enforce
this article by appropriate legisla-
ton"
The Ohio State Prohibition Amend
ment, which became effective May 20,
1919, to-wit: Sec. 9, Art XIV of the
State Constitution, provides:
1.-THE sale and manufacture for sale
of Intoxicating liquors as beverage
are hereby prohibited. The General
Assembly shall enact laws to make
this provision effective. Nothing herein
contained shall prevent the manu-
facture or sale of such liquors for
medicinal, industrial, scientific, sacra-
mental, or other non-beverage pur-
poses"
Section o212-15-16 Of the General
Code provides;
mo person shall possess
any Intoxicating liquor ex-
cept as authorized in this act. Liquor
and liquor preparations and compounds
for non-beverage purposes and wine
for sacramento purposes may be
naceaccaJ hut an1u
in accordance with the Ma
tional Prohibition Act ~
and
at shall be unlawful to have or
possess any liquor intended
for use in violation of the law"
The complaint. or affidavit in ques-
ton, charged that the defendant
did unlawfully possess certain in
toxicating liquor to-wit: whisky, said
possession not being in bona fide
private residence and not being in &C
cordance with the provisions of Title 2
of the Act of Congress known as the
National Prohibition Act, passed Octo-
Der 2S, 1919. CONTRARY to Section
6212-11' of the General Code Of Ohio
and against the peace and dignity OF
the State OF 8Ohfo.1
Upon the conviction of the defend
ant, error was prosecuted to the Court
of Appeals and finally to the Supreme
Court, the contention of the plaintiff
in error being that under the Eight
zenith Amendment, the Ohio Constitu-
ton and Section 6212-16 of the Ohio
General Code it is necessary to allege
that the liquor in question was unlaw-
fully possessed for beverage purposes
The Supreme Court denied the validity
of this contention and held
chat one who possesses Intoxicating
liquor Is guilty of an offense unless
such possession comes within the ex-
ceptions thereto, and which exceptions
may be affirinatively established as
matter of defense"
The court quoted from STATE v
ELSON, 81 Q. c. A, 4Sl approvingly
as follows:
Gan affidavit charging possession OF
intoxicating liquor is not rendered de-
fective by reason of failure to af-
Tentatively charge that the liquor so
possessed was for beverage pur-
poses"
The court further cited its opinion
in STATE v. MARCINSKI, 1903 O.
S., $40, as an affirmation of the logic
used in the present case, although on
slightly different point.
MATTERS OF DEFENSE
In this case the court further re-
affirmed its views upon the subject,
pleading and proving exceptions as
follows:
"Unless an exception or proviso Is
part of the description of criminal
offense, it need not be pleaded or
proved by the state, but is matter of