People v. Smith

HOUSER, J.

Defendant was convicted of the offense of selling intoxicating liquor contrary to the statute in such cases made and provided. He appeals from the judgment only.

On the trial, over the objection of defendant, evidence was introduced showing the commission by defendant of offenses of the same character as that with which he was charged and occurring on separate days from the one specified in the information. This evidence was rebutted by several witnesses on behalf of defendant. A motion by defendant to strike out the testimony to which he had objected was denied by the court. In connection therewith and at the close of the ease, among other instructions, the jury was charged that “that testimony was received, not for the purpose of establishing a separate misdemeanor or offense, but merely as a circumstance indicating what the probabilities are as to whether or not he did make the sale in question. . . . This is, as I say, that testimony as to those other sales or that other sale, is merely for the purpose of helping you determine whether or not he did sell on the fourth day of February.”

In the case of

People

v.

Morales,

45 Cal. App. 553 [188 Pac. 58], the charge contained in the information was that on a certain date defendant had illegally sold alcoholic liquors. On the trial of that case, as here, evidence of sales of alcoholic liquor on other days than that specified in the information was admitted over defendant’s objection; and the court, after citing California authorities bearing upon the matter, reached the conclusion that the error was so prejudicial to defendant’s rights as to require a reversal of the judgment. The case of

People

v.

Amort,

60 Cal. App. 29 [212 Pac. 50] ,

People

v.

Clark,

28 Cal. App. 670

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