People v. Jones

FINCH, P. J.

The information herein charges two offenses. The first count charges an unlawful sale of intoxicating liquor on the twenty-first day of September, 1925, and a previous conviction, on the eighth day of May, 1924, of an unlawful sale. The second count charges that the defendant, on or about the seventeenth day of October, 1925, maintained as a common nuisance a place where intoxicating liquor was unlawfully kept and sold. He admitted the prior conviction, but pleaded not guilty to the charges of unlawful

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sale and maintenance of a. nuisance. He was convicted of both offenses and prosecutes this appeal from the judgment and the order denying a new trial.

The evidence against defendant is strong and convincing. Three witnesses, one a township constable, testified that they went together to defendant’s home on the twenty-first, day of September, 1925, and that he there furnished them intoxicating liquor, which they drank on the premises, and also sold them three bottles of liquor. Three other constables testified that they searched the defendant’s premises on the seventeenth day of October, 1925; that they “heard a racket in the house” as they entered the gate; that in the house they “could smell liquor there strong”; that they found where liquor had been recently poured out in the back yard on some papers and leaves and secured a small quantity of the liquor from papers which were “cupped” and by squeezing it out of the papers. This small quantity of liquor was produced at the trial. Several other witnesses, testified that they had purchased liquor from defendant at his home at different times. While the liquor furnished by the defendant on the twenty-first day of September was all sold and delivered at the same time, the transaction constituted separate sales to the three witnesses mentioned in connection therewith. At the defendant’s request the court required the district attorney to elect the sale upon which he would rely for a conviction and he selected that made to the constable.

In reading the information to the jury the clerk, doubtless through inadvertence, read that part thereof which charges a previous conviction, contrary to the express provisions of sections 1025 and 1093 of the Penal Code. Appellant contends that this constitutes prejudicial error. It is probable that the clerk’s error escaped the attention of the court and the- attorneys for both parties, because no reference thereto appears in the record. The sale of the liquor upon which the prior conviction was had was properly admitted in evidence in support of the charge of maintaining_ a nuisance, which is a continuing offense.