People v. Mazzola

THOMPSON (IRA F.), J.

The defendant, together with Rafael Cervantes and Orville H. Kilbourne, was charged by information filed by the district attorney of San Bernardino County with the offenses of possession of a still and operating a still, the first count alleging the possession and the second the operation. Cervantes and Kilbourne plead guilty. The jury found the defendant guilty of both counts and he appeals from the judgment and order denying his motion for a new trial.

The grounds set up by appellant as reasons for a reversal are four, as follows: (1) “The appellant was tried for two crimes based upon one transaction, which, under the law, constitute one crime only”; (2) “Two judgments in the case are pronounced against appellant for one crime”; (3) There is no testimony other than that of accomplices connecting or tending to connect appellant with the offenses; (4) The court erred in giving certain instructions.

It is to be noticed that the first two points raised by appellant are substantially the same and both will be determined by finding an answer to the question: Was the only act of possession of the still necessarily involved in that of operating the still? If the possession of which the appellant was found guilty was necessary and incidental only to that of operating the still then he was guilty of but one offense and it cannot be carved into pieces whereby to inflict double punishment.

(Schroeder

v.

United States,

7 Fed. (2d) 60, and cases there cited.) If, however, there was possession for a substantial period of time which was not necessarily incident to the operation of the proscribed utensils the appellant could be found guilty of both offenses.

(In re Chaus,

92 Cal. App. 384 [268 Pac. 422], and cases there cited.) Aside from the force of precedent, however, it is. obvious that a person might have a still in his possession for an appreciable period of time without

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attempting to or without any idea of operating the same, and then determine to and actually put it into use. Under such circumstances no doubt could exist concerning the commission of both offenses. The testimony in the instant cause was sufficient to authorize the conclusion that appellant had had possession of the still for some time prior to the time it was set up and put to work where it was found by the officers. We are compelled, therefore, not to agree with appellant that he was guilty of only one offense.