People v. Buonocore

PLUMMER, J.

The defendant was convicted of the offense of maintaining a nuisance upon an information in the following words and figures, to wit: “Salvatore Buonocore is accused by the district attorney of said county of Sacramento, by this information of the crime of maintaining a common nuisance, committed as follows:

“The said Salvatore Buonocore, on the - day of November, A. D. 1924, in the said County of Sacramento, in the said State of California, and before the filing of this information, did then and there wilfully and unlawfully maintain a common nuisance at a certain building or house situate at 412 R Street, in the City of Sacramento, County of Sacramento, State of California, in that the said defendant did then and there wilfully and unlawfully possess and keep on the premises aforesaid, certain intoxicating liquor for beverage purposes and not for sacramental or medicinal purposes, the said intoxicating liquor then and there containing more than one half of one percent of alcohol by volume, contrary to the form, force and effect of the Statute in such case made and provided, and against the peace and dignity of the people of the State of California. ’ ’

The defendant’s motion for a new trial being denied, the cause has been appealed to this court. Upon being arraigned on the information referred to, the defendant filed a demurrer stating six grounds of objection, only two of

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which we need to consider, to wit, the second, which reads as follows: “That said information does not comply with Section 952 of the Penal Code of the State of California in this: That it cannot be ascertained therefrom the offense charged or the particular circumstances of the offense charged which are necessary to constitute a complete offense” and the fourth assignment, to wit: “That said information is defective in this: That it charges two of the same offenses in the same paragraph and said defendant cannot understand whether or not he is charged with the unlawful possession of intoxicating liquor or is charged with maintaining a common nuisance.”

It is evident from a reading of the information that the intent of the pleader was to charge the defendant with maintaining a common nuisance. It is also evident from a reading of the information that the pleader did not have in mind the acts necessary to constitute the offense of maintaining a nuisance. The pleader did not set forth in the information, as required by the third subdivision of section 952,