Epitomized Opinion

Beck was arrested and convicted before a mayor upon a charge of possession of intoxicating liquors and a fine of $500 and costs of prosecution was assessed. Beck prosecuted error in the common please, where the magistrate was reversed upon the ground that the evidence introduced on the trial was obtained under an illegal search warrant.

This judgment was entered in the common pleas Aug. 26, 1921. May 16, 1922 (more than 70 days) the state filed a petition in error in this court. Held:

1. That the 70-day statute of limitations provided in civil cases does not apply in criminal cases and the statute requiring leave and fixing a time for the defendant to prosecute error does not apply to the state. 73 OS. 195; 22 OS. 581; 20 CC. Ns. 606; and 97 OS. 128, given as authority.

2. It appears that search warrant issued by the magistrate against Beck was directed to K., marshal, but was actually served by W., constable. W. deputized certain others who assisted in the search. Upon trial before the magistrate there was a general objection to the evidence secured under the search warrant, but there was no motion or application before trial to secure the return of the property obtained under the search warrant. On this point it was held:

That the question as to the legality of evidence secured under an irregular search warrant must be made before trial, and cannot be made by general objection during it. See Ciano v. State, post. p. 9,00°.

3.The case was a question of fact as to whether the beer in the possession of Beck contained an illegal quantity of alcohol and this was a question to some extent of credibility. The testamory of Y., who was apparently a disinterested witness, was more complete and specific than the testimony offered by the defense. Besides the magistrate, being the trial court, has the advantage of the personal presence of witnesses and reviewing court should hesitate to reverse on the weight of evidence where the decision rests upon the credibility of witnesses. Bree v. State, 12 OS. 146.

The judgment of the common pleas should be reversed and the magistrate affirmed.