People v. Mattos

PLUMMER, J.

The defendant was convicted of the offense of selling intoxicating liquor, contrary to the laws of the state of California, upon an information charging the commission of such offense at a certain building or house situated at 2030' Third Street in the city of Sacramento, county of Sacramento, state of California. The defendant’s

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motion for a new trial being denied, the defendant appeals from the order denying his motion for a new trial and a judgment entered upon the verdict finding him guilty of the offense charged in the information just referred to. Three points are assigned by the appellant as grounds for reversal herein: first, that the court erred in the admission of testimony; second, that the court erred in its instructions given to the jury, and, third, that the court erred in pronouncing judgment of imprisonment in the county jail, in that the appellant should have been given the right to escape a jail sentence by the payment of a fine.

The testimony in behalf of the People is to the effect that the witness Lohman, accompanied by a man by the name of Reynolds, on the evening of the twenty-eighth day of July, 1923, went to the place of business owned and kept by the defendant, to wit, a grocery-store, and upon arriving at said place found the defendant in front of his store; that the witness Lohman then and there asked the defendant to sell him two bottles of wine; that the defendant went around in back of the building to some place not known by the witness Lohman and shortly returned with two bottles of wine for which the witness paid the defendant two dollars. The man Reynolds, who accompanied the witness Lohman, was not called at the trial. These bottles of wine were taken by the witness Lohman, who thereafter, accompanied by Reynolds, went to a dance. It appears that before going to the dance they went out on the Natomas boulevard and cached or secreted one bottle of wine, the other bottle they proceeded to drink. After the dance they returned to where one of the bottles of wine had been cached, as just stated, procured the same, but were thereupon apprehended by one of the police officers of the city of Sacramento. The witness Lohman testified to the matters hereinbefore stated. The bottle was analyzed, was found to contain a prohibited quantity of alcohol and was admitted as one of the exhibits in the case. The defendant endeavored to meet the case made out by the People by introducing testimony tending to show that he was not at his place of business on the evening of July 28, 1923, at the time designated by the witness Lohman as about the hour when he made the purchase of the two bottles of wine. The witness Lohman also testified that he knew the defendant and had previously seen him at the grocery-store conducted by the defendant.