People v. Arnarez

PLUMMER, J.

By an information filed in the superior court on the ninth day of January, 1924, the defendant was charged with the offense of unlawfully and knowingly manufacturing intoxicating liquor for beverage purposes contrary to the form, force, and effect of the statute in such cases made and provided. Thereafter the trial was had on the information and upon the conclusion thereof the jury returned the following verdict:

“We, the Jury in the above-entitled cause, find the Defendant Gean Arnarez Guilty of the crime of unlawfully having in his possession intoxicating liquor, included within said charge of unlawfully manufacturing intoxicating liquor in violation of the Wright Act (Stats. 1921, p. 79) as charged in the information.”

The matter is now before this court upon the defendant’s appeal from an order denying his motion for a new trial and the judgment of conviction pronounced in pursuance of the verdict herein set forth.

A reference to the Volstead Act, the penal provisions of which were incorporated into the laws of this state, shows that the offense of unlawful possession of intoxicating liquors and the manufacture of intoxicating liquors or sale for beverage purposes are separate and distinct offenses, even though they are so connected that under the procedure admissible to be followed and ordinarily followed in the federal courts, said offenses are set forth in distinct and separate counts and the jury authorized to find the defendant guilty upon the particular count or counts sustained by the evidence. See

Fassolla

v.

United States,

285 Fed. 378, in which the

[648]

defendant was prosecuted under a count charging unlawful sales and under a count charging unlawful possession.

Though not supported by any brief on file in this case, the prosecution appears to have relied upon section 1159 of the Penal Code, which reads: "The jury may find the defendant guilty of any offense, the commission of which is necessarily included in that which he is charged, or of an attempt to commit the offense.” It would appear from a reading of the Volstead Act (U. S. Comp. Stats., Ann. Supp. 1923, §10138¼ et seq.; Fed. Stats. Ann. (1919), p. 197 et seq.), that the lesser offense included within the charge of manufacturing is the having in one’s possession of the materials and supplies with the intent and purpose of manufacturing intoxicating liquors for beverage purposes. The offense of unlawful possession and the crime of unlawful manufacture are separately and distinctly defined in the Volstead Act and separate and distinct penalties for the separate offenses fixed and particularly set forth. We see no difference in the application of the principle concerning distinct offenses in this case from that which was applied by the federal court in the cases of