People v. Perry

HART, J.

Convicted of the crime of selling intoxicating liquor in the fifth supervisorial district of Butte County, said district having been at a date prior to that of the commission

[338]

of the alleged crime made by the electors thereof no-license territory under the Local Option Law, the defendant brings this appeal to this court from the judgment, claiming to be entitled to a reversal thereof on the grounds: 1. That the court erred in its rulings disallowing answers to certain questions propounded by counsel for the defendant to certain jurors on their

voir dire

examination; 2. That the court erred in allowing testimony of sales of intoxicating liquor by the defendant, other than that alleged in the information; and, 3. That error was committed by permitting the district attorney to amend the information in a certain respect, to be hereafter more particularly explained.

1. It is wholly unnecessary to reproduce here the questions to which answers by the jurors were interdicted under the rulings of the court, as it is clear that the action of the court in that regard was without prejudice, even if it may well be conceded that to some of said questions answers could have with legal propriety been allowed. The only record here upon this point applies solely to the case of juror George A. Martin. It shows that the defendant exhausted but seven of the peremptory challenges to which he was entitled (Pen. Code, sec. 1070), and it further shows, at least presumptively, that juror Martin was satisfactory to the defendant, as he was accepted and constituted one of the panel which tried the cause.

(People

v.

Shafer,

161 Cal. 573, 576, [119 Pac. 920, 921] :

Scragg

v.

Sallee,

24 Cal. App. 133, [140 Pac. 706].)

2. The charge in the information is that the defendant did, on the twenty-fifth day of September, 1913, “sell intoxicating liquor, to wit, whiskey, a spiritous liquor, to H. A. Breedlove, in no-license territory, to wit: In Kimshew township, county of Butte,” etc. The court, over objection by the defendant, permitted the district attorney to prove by other witnesses than Breedlove that they had, at various times prior to the date of the commission of the offense stated in the information, purchased intoxicating liquor from the defendant. Thereafter, the attorney for the defendant moved to strike out that testimony. The court granted the motion and instructed the jury to entirely disregard it in considering the question of the guilt or innocence of the defendant.