People v. Nolan (1917) · DecisionDepot

People v. Nolan

Name: California Superior Court Tentative Rulings
Creator: DecisionDepot
License: https://creativecommons.org/licenses/by-nc/4.0/

California Court of Appeal Sep 5, 1917 No. Crim. No. 398.Published

Before: Burnett

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Holding. The court affirmed the defendant's conviction for keeping a place where alcoholic liquor was sold in no-license territory, finding no error in the denial of a change of venue, the trial court's comments, the admission of evidence, or the sufficiency of the evidence.

Issues

Whether the trial court erred in denying a motion for change of venue made orally and supported by insufficient affidavits.
Whether the trial court's comments regarding the meaning of a witness's testimony constituted prejudicial error.
Whether evidence of liquor sales prior to the date charged in the indictment was admissible.
Whether the evidence was sufficient to support the verdict and the proof of no-license territory status.

Disposition. affirmed

Quotations verified verbatim against the opinion

“Section 1034 of the Penal Code requires that the application for change of venue be in writing.”

“While we cannot too forcefully urge trial courts to exercise great care in making such statements in the jury’s presence, we are not satisfied that defendant was prejudiced here.”

“As bearing upon this issue the evidence of prior sales, not too remote, was competent.”

Synopsis

APPEAL from a judgment of the Superior Court of Mendocino County, and from an order denying a new trial. J. Q. White, Judge.

The facts are stated in the opinion of the court.

BURNETT, J.

It being suspected that defendant, Nolan,was “blind-pigging,” one Baroni was employed by the sheriff of Mendocino County to purchase liquor from defendant, and succeeded in doing so. Defendant was thereupon charged, by indictment of the grand jury of the county of Mendocino, with the offense of keeping and conducting, in no-license territory, a place where alcoholic liquor was sold and distributed, and keeping and conducting, in no-license territory, a place where alcoholic liquors were kept for the purpose of sale and distribution.. He was thereupon duly tried and convicted of the offense charged in the indictment. Defendant moved for a new trial, which motion was denied, and he was thereupon sentenced to pay a fine of five hundred dollars, and to six months’ imprisonment in the county jail. Defendant prosecutes this appeal from the order and the judgment.

The several points urged by appellant for reversal are as follows: (1) That the court erred in refusing to grant defendant’s motion for a change of venue; (2) That the court committed prejudicial error in that it made certain statements which improperly affected the verdict of the jury; (3) That it was error to admit evidence of sales of liquor on dates immediately prior to that charged in the indictment; and (4) That the verdict was not supported by the evidence.

As to the point that the court erred in refusing to grant defendant’s motion for a change of venue made on the ground that a fair and impartial trial could not be had in the county, it need only be said that defendant failed to properly raise that point. Section 1034 of the Penal Code requires that the application for change of venue be in writing. (See, also,

People

McGarvey,

56 Cal. 327.) The motion of the defendant here was made orally. In addition, the affidavit of defendant in support of his motion is insufficient. It merely states “that said affiant firmly believes and in -fact knows that it is impossible for him to secure a fair and impartial trial at the hands of a jury drawn from this particular com-munity.” But it is settled that “affidavits for such a motion must state the facts and circumstances from which the conclu

[547]

People v. Nolan

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Synopsis

BURNETT, J.

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