People v. Colombo

FINCH, P. J.

The information filed in this ease charged the defendant with the unlawful possession of intoxicating liquor on the thirteenth day of January, 1924. In a separate count it charged:

“That prior to the 13th day of January, 1924, to-wit the 5th day of November, 1923, defendant above named was convicted in the justice’s court of Fourth Township, Tuolumne County, California, on a charge

of unlawfully having and possessing intoxicating liquors, containing in excess of one half of one per cent of alcohol, which was fit for use for ieverage purposes,

contrary to the provisions of the act commonly referred to as the Wright Act.”

[491]

The information then concluded in the stereotyped language, “contrary to the form, force and effect of the statute in such case made and provided, and against the peace and dignity of the people of the state of California. ’ ’

The defendant entered a plea of not guilty and denied the prior conviction. The jury returned a verdict of guilty as charged and found that the defendant had suffered a prior conviction of violation of the Wright Act. (Stats. 1921, p. 79.) This appeal is from the judgment entered on the verdict and from the order denying defendant’s motion for a new trial.

The sheriff of the county testified that on the thirteenth day of January, 1924, he went to defendant’s hotel, armed with a search-warrant, for the purpose of searching the premises for intoxicating liquors; that when he drove up in his automobile the defendant’s wife “hollered ‘Charley’ three times very loud, or ‘Carlo’; it sounded like Charley to me”; that the witness immediately ran to the kitchen and that about the time he arrived there the defendant “dumped some liquor into the sink from a coffee-pot; that the witness saw the discoloration in the sink made by the liquor and stooped over the sink and smelled the liquor; that the defendant was very pale and washed the coffee-pot with a dish rag; that when the witness turned away from the sink the defendant “turned to the stove and got a pitcher of hot water and flushed it into the sink, and he flushed this stuff out”; that the witness “had considerable experience in the smelling of alcoholic liquors” and “can determine from the smell of alcoholic liquors whether it is whisky, wine, or brandy”; that the liquor turned into the sink was “corn whisky’’; that there was “just a small odor of liquor” in the coffee-pot after it had been washed; that he made a thorough search of the premises but found no other intoxicating liquor except a bottle in a guest’s room. It is not claimed that this bottle of liquor was in defendant’s possession. The defendant denied that he heard his wife call to him, or that he had any liquor in his possession or turned any into the sink. He also denied other parts of the sheriff’s testimony which it is not material here to discuss.