People v. Miller

California Court of Appeal Feb 25, 1929 No. Docket No. 1070.Published

Before: Thompson

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Holding. The court held that the evidence was sufficient to support a conviction for unlawful possession of intoxicating liquor and that the trial court's instructions and conduct complied with statutory requirements.

Issues

Whether the evidence was sufficient to support the verdict of unlawful possession of intoxicating liquor.
Whether the trial court failed to comply with Penal Code section 1127 regarding the signing of instructions and the prohibition of unwritten instructions.
Whether the trial court erred by failing to instruct the jury on the legality of possessing liquor for domestic use in a private dwelling.

Disposition. affirmed

Quotations verified verbatim against the opinion

“The evidence sufficiently shows that the defendant had in his possession at his residence jackass brandy which was kept for illegal purposes.”

“A mere colloquy between counsel and the court intended only as an explanation for the giving of certain instructions does not constitute a part of the charge”

“A defendant may not complain of a failure to give instructions upon particular features of an offense, which he relies upon as a defense, in the absence of a specific request for such instructions.”

THOMPSON (R. L.), J.

The appellant was convicted of the unlawful possession of intoxicating liquor. He was also charged with the prior conviction of a similar offense, to which he entered a plea of guilty.

It is now contended that the evidence fails to support the verdict, chiefly because it does not affirmatively appear that the liquor was not kept by the defendant for domestic use in a private dwelling-house. The appellant also complains of certain instructions and oral remarks made by the trial judge.

August 24, 1928, two officers visited the residence of the defendant at Knights Landing. One went to the front door and the other approached the rear door. -The officer Litsch testified: “I ran to the back door. ... As I came up on the porch, .. . . Mr. Miller ran to the sink with two bottles and threw them down into the sink and broke them. I went in, . . . and the liquor was in the sink running down. . -. . It was brown, . . .• about • the color of ordinary jackass (brandy); . . . there was the odor of jackass and gin. It smelled very strong of - gin and very- strong of jackass brandy. ... As I came in the door, .-. . Mr. -Miller stepped back from the sink and said ‘I beat you to it that time,’ and laughed. . . . Q. Would you say .-it was fit for beverage purposes before it got into the trap? A. Yes, oh sure, . .- . that was fit for beverage purposes. . . . Up in the cupboard were a lot of whisky glasses.” The gooseneck drain from the sink to the sewer was immediately removed by the officer and its contents were analyzed by a chemist and found to contain 11.46 per cent of alcohol by volume. The presence of water in the gooseneck would account for a lower

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percentage of alcohol than would normally be found in jackass brandy.

The evidence sufficiently shows that the defendant had in his possession at his residence jackass brandy which was kept for illegal purposes. The character of the liquor was identified by an analysis and from its odor. The presence of the glasses and the effort to destroy the evidence of the liquor tend strongly to show that it was kept for beverage purposes.

(People

People v. Miller

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THOMPSON (R. L.), J.

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