People v. Masolini

PLUMMER, J.

The defendant was convicted of the offense of unlawful sale of intoxicating liquor. The information charged a prior sale and conviction, of which the defendant pleaded guilty, but interposed a plea of not guilty to the offense charged as the basis of this action. The appeal is from the judgment of conviction.

As a cause for reversal the appellant alleges that the trial court erroneously admitted testimony prejudicial to the defendant, brought out by the district attorney upon crossexaminatiofi.

The record shows that a deputy sheriff of Mendocino County and another person named Weger employed a man by the name of Harry Johnson to go to the place of business, to wit, a restaurant kept by the defendant, and solicit the purchase of intoxicating liquor. Johnson was provided with “marked” money, and before going to the place of business of the defendant was searched by the deputy sheriff to determine positively that he, Johnson, had no intoxicating liquor upon his person. Johnson went to the place of business of the defendant and there purchased drinks of whisky and also some ginger ale. While Johnson was engaged in this act, Weger and Fisk appeared upon the scene and arrested the defendant, who had concealed a flask of whisky upon his person. They also found the defendant in possession of the “marked” money. The defense was that Johnson brought the flask of whisky with him and was treating the defendant to a drink when the arresting officers arrived.

[194]

Upon the witness-stand the defendant was asked by his counsel the following question: “Did you make any statement at the time they found the whiskey on you? A. No, I don’t say nothing, and I tell Mr. Fisk when I went down— I tell him—I says, ‘Poor Jim, he is in trouble all the time,’ because I know they framed up on me; I know they play a trick on me.” Upon cross-examination in relation to this statement by the defendant, the district attorney asked the following questions: “Q. What did you mean when you said you were in trouble all of the time; had you been arrested before for intoxicating liquor?” To which the defendant objected on the ground that it was incompetent, irrelevant and immaterial. This objection was overruled, and the question was repeated in the following form: “Q. Had you not been arrested before on the charge of selling intoxicating liquor?” The objection being overruled, the defendant answered that he had. The district attorney then asked the following questions: “Q. How many times? A. Once. Q. How long ago? A. I don’t remember; about three months before. Q. At the same place ? A. Yes. Q. Is that what you meant when you said, ‘Poor Jim is in trouble all the time’? A. No. Q. What did you mean by that? A. I don’t even know myself.”