People v. Mitsunaga

WOOD (W. J.), J.,

pro

tem.

Appellant was accused by information filed by the district attorney of Kings County of the crime of possession of a still used in the manufacture of intoxicating liquor. Following his conviction by a jury he filed motions for a new trial and in arrest of judgment. He now appeals from the orders of the court denying these motions and from the judgment.

Appellant contends that the evidence is insufficient to support the verdict and that the

corpus delicti

was not proved. These contentions may be considered together. By the evidence presented by the prosecution it was established that defendant was arrested in the night-time when he was the sole occupant of a house near the city of Hanford, in which there was, according to the testimony of the arresting officer, “one complete still; 39 quarts of ‘jackass’; about 15 empty sacks—just a minute; about 15 sacks of empty bottles; two bottlers, or rather, cappers, two machines for putting caps on bottles; two funnels, one glass, that is, one glass funnel, I mean; one full barrel of Egyptian corn, rye and sugar mash; two barrels partly filled; one barrel filled with water; one 10 gallon earthen jar; one 15 gallon earthen jar; one one gallon glass jug. When the officers approached the house a light was burning, but the light was extinguished as

[301]

soon as the officers drove up. The front door was locked. A new padlock, which was on the outside of the back door on the day before the visit of the officers, had been removed, but the door was locked from the inside. The defendant had been in the house on the occasion of a previous visit by the officers. "Upon their arrival on the occasion of the arrest the officers announced who they were and what their business was, and called out to anybody who might be in the house to open the door. There being no response to this request the officers tried to open the back door with a pass-key, but failed, and finally “pinched it open with a jimmy.” In the house they found the defendant standing in the dark facing away from the back door. George P. Bohlken, a chemist, testified that five bottles or jars of liquor which he took from the thirty-nine different containers indiscriminately were intoxicating liquor containing from forty to forty-five per cent of alcohol by volume. He also testified that the still introduced in evidence contained all the essential elements of an apparatus for distilling intoxicating liquors. Counsel for appellant argues that the facts shown are consistent with the innocence of the accused. If this be conceded, it does not necessarily follow that the facts are insufficient to support the verdict. In