People v. Hogel

PLUMMER, J.

The defendant was convicted of the offense of maintaining a nuisance by having in his possession a jug containing about a gallon of intoxicating liquor at a certain building or house occupied by him at No. 714 in the alley between M and N Streets, in the city of Sacramento, and appeals from the judgment of conviction. The evidence in this case shows nothing further than the mere possession of the liquor referred to, and upon the authority of the case of

People

v.

Mehra, ante,

p. 162 [238 Pac. 802], and

People

v.

Fuller, ante,

p. 183 [238 Pac. 809], it must be held that the evidence is insufficient to sustain a prosecution for the alleged

[217]

offense of maintaining a nuisance. The instructions in this ease are identical with the instructions held erroneous in the cases to which we have referred and the same ruling must be had here. The plea of once in jeopardy was also interposed, upon which appeal the same ruling must be had as in the cases to which we have referred. In this ease no demurrer was interposed to the sufficiency of the information to charge the offense of maintaining a nuisance, and while it is apparent that the crime of maintaining a nuisance is not charged in the information, in the absence of any objection urged by counsel for the defendant, we refrain from making any ruling thereon. The transcript shows that in the trial of this case the prosecution, over the objection of the defendant, read to the jury a portion of the argument made by counsel for the defendant upon the preliminary examination of the defendant and one Roberts. The argument to which we refer is as follows:

“Mr. Foote: No defense. I think, Tour Honor, there may be some question here as to the ownership of the liquor, but it would seem that, as to the defendant Roberts, it is the police officers’ testimony that Hogle was the owner of the place. Now', I don’t think that the testimony could or would warrant the court in holding the defendant Roberts to answer in the Superior Court on the charge of. maintaining a nuisance, because it wouldn’t matter whether it was his liquor or Hogle’s liquor or anybody else’s. He just happened to be there, and I think the Court, in justice to Roberts, should dismiss the charge against him, and then, if Mr. Hogle has any defense in the Superior Court why, of course, he could make that in the event Tour Honor holds him to answer.” ...