People v. Nolan

[494]

CHIPMAN, P. J.

Defendant was convicted of the crime of selling alcoholic liquor in no-license territory, upon indictment found by the grand jury of Mendocino County. He appeals from the judgment of conviction and from the order denying his motion for a new trial. The charging part of the indictment is that defendant, “within the boundaries of the Fourth Supervisor District of the said county of Mendocino, and outside the corporate limits of any city or town,” at the hour of 8 o’clock P. M., on April 17, 1916, “did then and there willfully and unlawfully sell, furnish, and distribute alcoholic liquor to one Emil Baro'ni said supervisor district being then and there no-license territory under the law of the state of California, contrary,” etc.

The prosecution introduced several witnesses whose testimony tended to establish the truth of the charge and, when about to close for the people, the following appears in the record: “Mr. McCowen (after consulting with attorneys for defendant): It is stipulated that. Mendocino City is in the fourth supervisor district, that it is not an incorporated town and that the fourth supervisor district is no-license territory. Mr. Gibson (attorney for defendant): Yes.”

The only point now made on the appeal is that there is no evidence showing that the said district was no-license territory on April 17, 1916, the date of the alleged sale of liquor as charged in the indictment. The indictment was found on May 6, 1916, and the trial took place October 10, 1916, at which time the above stipulation was made.

Defendant cites

People

v.

Cavallini,

29 Cal. App. 526, [156 Pac. 73]. In that case the point was raised on demurrer to ithe information that it failed to allege the existence of the ordinance at the time the selling of the liquor was alleged to have occurred.

In his opening statement to the jury the district attorney, addressing himself to defendant’s attorney, said: “I suppose, Mr. Schino, you will admit that the fourth supervisor district on the date alleged in the information was ‘dry territory?’ Mr. Schino: No, sir, if your Honor please, we desire to make a formal objection in that respect. ’ ’ After a colloquy between the district attorney, defendant’s attorney and the judge, the following appears: “The Court: Then, gentlemen of the jury, it is stipulated by and between respective counsel representing the people and the defendant that the fourth supervisor