People v. Mullaly

FINCH, P. J.

The information herein charges the defendant with the offense of unlawful possession of intoxicating liquor and alleges that prior to the commission thereof he was “duly convicted of the offense of unlawfully having intoxicating liquor in his possession. ’ ’ He admitted the prior conviction and was convicted of the offense charged. This appeal is from the judgment and .the order denying a new trial.

At the time of the alleged offense the defendant was conducting a hotel. On the twenty-third day of February, 192'5, between 8 and 10 o’clock P. M., a deputy sheriff, a constable, and two city marshals duly searched the defendant’s hotel and the premises adjacent thereto. From their testimony it appears that there was a bar in the hotel at which soft drinks were served. There was a tank-house about 15 or 20 feet from the rear of the hotel, and a barn, in which defendant had been keeping his horses, estimated to be from 75 to 150 feet diagonally from the rear of the hotel. In the kitchen they found a flask containing a small quantity of jackass brandy and there was a strong odor of the same kind of liquor in a bucket of water behind the

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bar and also in some glasses at the same place. In the tank-house they found two bottles containing a “very, very little” of the same kind of liquor. Three bottles of wine were found in the barn. There were many empty bottles and jugs in the tank-house and in the back yard. One of the city marshals testified as follows relative to the actions of defendant during the search: “I went in the hotel after I had been in the back yard, and he was wandering around from one room to the other and didn’t seem to be anybody keeping track of him, so I kind of kept track of him. . . . He went from one room to another, trying to chase a dog out of the house. . . . He finally left the dog in the bar room and ... he went out through the hallway, into the dining room and from the dining room to the kitchen and out the back screen door. „ . . When he went out the back door, he started on a run . . . and I kept as near to him as I could, and he reached down in the yard and grabbed a bottle and ran a little further . . . and then he threw the bottle and I heard the crash and in an instant I smelled the liquor. I asked him, . . . ‘Pat, what did you throw at?’ He says, ‘The . . . dog.’ I says, ‘There ain’t no dog there.’ He says, ‘Yes, there was.’ I says, ‘You broke the bottle.’ ‘I didn’t break no bottle,’ he says. Q. Where was the dog at that time? A. In the hotel. . . . The side of the building and brick was wet and broken glass there was wet. . . . Q..And did you smell anything on the bottle? A. Yes, sir. . . . What is known as jackass brandy.” Others of the officers testified that they heard the crash of the bottle when it was thrown and that the liquid therefrom was jackass brandy. Three previous sales of intoxicating liquor by defendant were proved. At the first sale he went out the rear door to get the liquor and was gone “just a few minutes.” He took the liquor from the barn for the second sale and from behind the bar for the third. The defendant took the witness-stand and denied practically everything stated by the witnesses for the prosecution except that his premises were searched. The implied findings of the jury are conclusive against him upon such conflicting evidence.