Opinion
Decided December 9, 1931.
Intoxicating liquors — Unlawful possession — Restaurant proprietor not aider or abettor — Drinking glass, ice and ginger ale furnished guest possessing liquor.
Where a guest, without the procurement of the proprietor of a restaurant, brings into said restaurant intoxicating liquor, which he keeps in his exclusive personal possession, and the proprietor does not do or say anything that either directly or indirectly assists in or contributes to or affects such possession, said proprietor is not an aider or abettor in such possession, although he does not object to the drinking of such liquor by said guest, and furnishes to him a drinking glass and ice and ginger ale for the purpose of facilitating the drinking of said liquor in said restaurant.
ERROR: Court of Appeals for Summit county.
Messrs. Rockwell, Grant, Thomas Buckingham, for plaintiff in error.
Mr. Don Isham, prosecuting attorney, and Mr. F.E. Renkert, for defendant in error.
In the common pleas court, A.W. Smith was charged with the illegal possession of intoxicating liquor, and was tried by the court without a jury and found guilty and sentenced. There is no claim made that the defendant was guilty as a principal, and his conviction was based upon the finding that he aided and abetted another in the illegal possession of the liquor in question.
We, of course, make no attempt to set forth the evidence, but we include in the facts deduced therefrom inferences most favorable to the claims of the state, which in some instances may not be fully warranted in view of the fact that the defendant's guilt must be established beyond a reasonable doubt.
The defendant conducted a restaurant in Summit county near the city of Akron. The building in which said business was conducted was not connected with or close to any other building, and had two entrances, both of which were free from any obstructions or devices which in any way interfered with the free and full use of the same by the public, and there was nothing to distinguish the place from any legitimate business place. At said place defendant served meals of all kinds, and also ginger ale and White Rock, commonly used in connection with the drinking of intoxicating liquor; there was also the usual music and dancing for the entertainment and pleasure of the guests.
The defendant knew that some of his patrons brought liquor into his restaurant, and that they were served with a glass and cracked ice and either ginger ale or White Rock, which were used in connection with the drinking of said liquor, but said liquor was always in the dominion and control of the owners thereof, and was never in the possession of the defendant or any one in his employ, and no liquor was possessed, sold or served by the defendant or any one in his employ at said place.
While the defendant had no connection with said liquor, he made no objection to his guests having liquor in their possession, if they kept the same reasonably concealed.
On the night in question there was found a bottle of liquor in the possession of one of the guests at one of the tables. Said guest is apparently unknown — at least he is not identified in any way — and he will be referred to as "G."
G. brought the liquor with him, but he did not do so by reason of any prearrangement with the defendant, and the defendant did not procure G. to obtain possession of said liquor, and did not in any manner aid or abet G. in obtaining its possession, and did not even know that G. had liquor in his possession until after G. was seated at a table in defendant's place of business.
Learning that G. had such liquor and desired a glass and ice and ginger ale to be used by him in the drinking of said liquor, the defendant furnished the same to G. for a consideration paid. Except for the furnishing of said service, with said knowledge, the defendant had no connection whatever with the liquor, either by way of prearrangement or knowledge, or otherwise.
During said evening four other unidentified and unknown guests brought liquor to the defendant's restaurant and were served in like manner and under like circumstances, and some of the guests became intoxicated, and one couple were so intoxicated that they fell upon the floor while dancing.
During the evening, enforcement officers entered the building and took said liquor from said guests, in two instances from the persons of said guests and in the other instances from the immediate presence of said guests, the same being found under the tables occupied by said guests, where it had been concealed; but there is no evidence that the defendant or any one in his employ did anything to conceal said liquor or to prevent the officers from discovering same.
The record does not disclose that the defendant knew any of said guests or that they were ever at said place previous to that evening; nor does it disclose anything as to their previous knowledge of said place; but if we may reasonably infer that defendant's evident policy of noninterference with guests who brought liquor to his place was known to G. and said other similar guests, and was considered by them in choosing where they would go to drink their liquor, still there is no evidence whatever of any act by the defendant from which it may be reasonably inferred that he in any manner aided, abetted or procured said guests in obtaining possession of their liquor.
There is, then, no evidence of any prearrangement or plan by which the defendant procured said guests to possess said liquor, or that the defendant in any way abetted therein.
Can it be said that the defendant, by furnishing said ginger ale, aided said guests in their continued possession of said liquor?
It seems to us that it cannot. What the defendant did was to aid and abet said guests in the drinking of liquor which they possessed and over which they had exclusive and complete control and dominion, but nothing that the defendant did tended to affect in any manner whatever the possession, control and dominion of said guests over their own liquor.
In the absence of a conspiracy or some preceding connection with the transaction, one does not aid and abet if he merely sees a crime being committed. Goins v. State, 46 Ohio St. 457, 21 N.E. 476.
Mere approval or acquiescence, without expressed concurrence or the doing of something to contribute to an unlawful act, is not an aiding or abetting of the act. State v. Peasley, 79 Wn. 99, 141 P. 316.
Without previous connection with the transaction, one is not an aider or abettor unless he knowingly does something which he ought not to do, or omits to do something he ought to do, which assists or tends in some way to affect the doing of the thing which the law forbids; in order to aid or abet, whether by words, acts, encouragement, support or presence, there must be something more than a failure to object unless one is under a legal duty to object. If A. knows that B. is illegally transporting liquor by truck, he does not aid and abet him therein by merely riding with him as a passenger upon the truck, although A.'s presence and failure to object may in a sense encourage B. As A. does nothing to further or affect the transportation, he is not an aider or abettor. So the defendant in this case, by furnishing the ginger ale, did nothing to further or affect the possession of liquor by his guests — he encouraged only in the sense that he failed to object — and, as he was under no legal duty to object, he did not aid or abet in the possession of their liquor.
We have been cited to no case and have found none in which those charged with the duty of enforcing prohibition laws have claimed that one was guilty of aiding or abetting in the illegal possession of intoxicating liquor under circumstances the same or similar to those presented by the record in this case, and that fact may be properly considered in support of the conclusion we have reached in this case. United States v. Farrar, 281 U.S. 624, 634, 50 S. Ct., 425, 74 L. Ed., 1078, 68 A.L.R., 892, last paragraph of the opinion.
Counsel for the state stress the claim that the defendant, in connection with restaurant service, furnished a dance floor and music, and the service, accommodation and equipage desirable and commonly accepted as necessary for the enjoyment of the use of intoxicating liquor, and did not object to his guests bringing and drinking liquor upon the premises; but for the reasons stated, such facts, considered in connection with all of the facts, do not justify the conclusion that the defendant aided and abetted his guests in the possession of their liquor, and therefore he was not guilty of the crime for which he was tried.
While the defendant did not commit the crime charged, he admits that guests were knowingly permitted to possess intoxicating liquor in violation of law in said place, and the facts referred to in the preceding paragraph, when considered in connection with all the facts and reasonable inferences shown by the record tend very strongly to establish that said guests were permitted to so use said place under circumstances which rendered said place subject to being padlocked as a public nuisance under the provisions of Section 13195-1, General Code, in a civil suit brought for that purpose, and that remedy should have been invoked instead of the criminal prosecution.
The judgment being contrary to law is reversed, and plaintiff in error is discharged.
Judgment reversed.
PARDEE, P.J., and FUNK, J., concur.