People v. Helt

CRAIG, J.

The appellant was charged with possession, control, ownership and operation of a distilling device, intended and used for the manufacture and production of intoxicating liquor, and appeals from a judgment of conviction.

On the evening of January 28, 1929, two officers visited a house in the city of Los Angeles, and while inspecting the premises Roy Helt drove to the rear, parallel with the garage, in an automobile. In response to questions he stated his name, denied that he resided there, or had ever been in the house, and said that he was returning the machine to the garage, that one John Marston was the owner and had loaned it to him. Upon demand therefor he produced a folder containing three keys, one of which fitted the lock on the garage, and with another the officers unlocked the front door of the house. Immediately upon entering they noticed a strong odor of whisky, and could hear a still boiling upstairs. Upon ascending to the second floor they found a still, and large quantities of mash and whisky of more than the legal content of alcohol, fit for beverage purposes. Helt was asked to shut off the still, but stated that he could not do so, and knew nothing about it. He was then taken to the first floor, where all three sat in darkness for some time, awaiting the arrival of Marston, when the telephone rang. One of the officers testified—and it was stipulated that the other would testify likewise—as follows: “Somebody on the other end of the phone said, ‘Hello Roy, is that you?’ I said, ‘Yes.’ He said, How many cans did it run?’ And I was at a loss to make an answer and I hung up.” Shortly thereafter it rang again, whereupon the defendant was instructed to answer, and to state that he could not shut the still off, to ask the other party to “come on over,” and to say that no officers were there. The witness stood near the telephone where he heard the conversation, and further testified: “He asked the de

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fendant, ‘Hello Roy, is that you?’ The defendant states, ‘Yes.’ ‘What is the matter?' and he said, ‘Nothing.’ ‘Well, why don’t you come on home?’ He said, ‘I can’t get this shut off,’ meaning the still. He said, ‘Why can’t you?’ He said, ‘I don’t know; there is something the matter with it.’ And they asked him whether there was the law there.” Within five or ten minutes the telephone rang a third time, as to which the officer testified: “There was a lady on the other end of the phone talking and asking him, said: ‘Hello, Roy, is that you?’ He said, ‘Yes.’ She said, ‘What is the matter?’ He said, ‘Nothing.’ She said, ‘Why don’t you come home?’ Then she asked if the law was there and who it was, and he denied the law being there.” The defendant testified in his own behalf, that he had been connected with an ice company for about five years, where he had met Marston, and that he had been to the house but once before. He admitted that the telephone rang as stated, denied that he knew any of the parties who had called, or that anyone said “Hello Roy,” or asked when he was coming home, how much liquor ran off, or that he shut off the still. He testified that in these conversations he told the parties to send Marston over, believing that they must have known him. When cross-examined concerning his testimony at the preliminary examination, it appeared that he had then sworn that Marston was one of the parties telephoning, and that the latter did tell him to “shut off the still and get out of there,” that “he said he saw lights there while they were there.”