People v. Garrigan

137 Cal.App.2d Supp. 854 (1955) THE PEOPLE, Respondent,

v.

THELMA GARRIGAN, Appellant.

California Court of Appeals.

Nov. 10, 1955. Cunningham, Parry & Holcomb and W. R. Holcomb for Appellant.

Lowell E. Lathrop, District Attorney (San Bernardino), and Alfred A. Wells, Deputy District Attorney, for Respondent.

HILLIARD, J.

This is an appeal from a judgment of conviction of violation of Business and Professions Code, section 25658, subdivision (a), following trial by the court without a jury. There is no substantial conflict in the evidence concerning the transaction which was the basis of the prosecution. It was established that appellant sold three six-packs of beer to a minor, aged 17. In defense appellant testified that she had sold beer to the same minor upon four or five previous occasions; that, on each of these occasions the minor had presented a Marine Corps Identification Card with statistical information identical in comparison with his physical appearance, and indicating that he was 22 years of age. Appellant further testified that at the time of the sale in question she did not demand or see any evidence of the minor's identification or age, since she was satisfied of his majority by the previous transactions.

The minor denied ownership or possession of such identification card, or that he had ever displayed such document to appellant.

No objection was made at the trial to the introduction of testimony concerning these prior sales. At the conclusion of the evidence the trial judge stated that there was no dispute as to the sale upon which the prosecution was founded; that the minor had denied showing an identification card at any time; and that the defendant was guilty as charged.

[1a] Thereafter counsel for appellant requested the judge to make a specific finding that the defense of identification [137 Cal.App.2d Supp. 856] by documentary evidence of majority, as provided in section 25660, Business and Professions Code, was not available to a defendant in a criminal prosecution. Counsel now justifies this rather unusual procedure by asserting that the trial judge had indicated during the trial that he believed such to be the law and had, therefore, disregarded evidence in support of such defense. Counsel further states that, since no objection was made to the introduction of evidence supporting this defense, and no jury instructions were required, such procedure was his only method of creating a record for review of this point upon appeal.