People v. Labow

THOMPSON (IRA F.), J.

The defendants were convicted of a conspiracy to “sell, possess and transport intoxicating liquor fit for beverage purposes, containing more than one-half of one per cent of alcohol by volume.” They appeal from the judgment and an order denying their motion for a new trial.

The first ground assigned for a reversal is that the indictment does not charge a public offense, and we shall at this time direct our attention to their argument in this particular. We have quoted that portion of the indictment claimed to be insufficient. It is insisted that it should have charged that the defendants conspired together that they would “unlawfully” sell, possess and transport intoxicating liquor, etc., and also that it fails to state that the liquors were

for

beverage purposes. The attorney-general asserts that the appellants waived the point relied upon by failing to demur to the indictment, and by waiting to urge it before the trial court until argument upon a motion in arrest of judgment. We think this contention must be sustained. It may be assumed that had a demurrer been interposed the indictment would have been fatally defective. But section 1185 of the Penal Code by its terms provides that an objection which is waived by a failure to demur, is not tenable as a ground for a motion in arrest of judgment. It is here to be noted that the indictment charges that the defendants “did wilfully, unlawfully and feloniously agree, conspire and combine together that they would sell, etc.” Some meaning must be attached to this language. They could

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not unlawfully and feloniously conspire to lawfully sell, possess and transport. We are therefore brought to a point parallel with the case of

People

v.

Mead,

145 Cal. 500 [78 Pac. 1047, 1048], where a similar objection to an information was- attempted to be urged for the first time upon a motion in arrest of judgment and wherein it was held that the objection was waived, the court saying: “If the defendant before the trial had presented a demurrer to the information; and had then urged the defect therein which he now suggests, there could have been an opportunity for the court to have directed an amendment of the information, curing the defect. Instead of raising the question at that point in the case, he seeks to gain an advantage by taking the chances of an acquittal upon the trial, and after conviction attempting to get a new trial by reason of the defect which he should have urged before.” Again, in