People v. Fuller

PLUMMER, J.

The defendant was convicted under an indictment charging him with wilfully and unlawfully maintaining a common nuisance at a certain house or building, numbered 1417 Twenty-second Street, in the city of Sacramento, county of Sacramento, state of California. From the judgment of conviction and the order denying his motion for a new trial the defendant appeals and assigns as grounds for reversal, to wit:

1. That the evidence is insufficient to establish the charge of maintaining a common nuisance;

2.

That the court erred in its instructions to the jury;

3. That the defendant had been once placed in jeopardy for the same offense.

This case was submitted upon the briefs filed in the case entitled,

The People etc.

v.

Mehra, ante,

p. 162 [238 Pac. 802], wherein the same questions were-involved, and it will therefore suffice to réfer to the said opinion for the authorities cited and upon which the opinions in that case and in .this case are founded.

Conviction was had in this case upon the following testimony: T. W. Pearson, a police officer, testified as follows: “On the 8th of October, 1924, I visited the premises known as 1417-22nd street in the City of Sacramento, County of Sacramento, State of California. I went there about 9 P. M. I was accompanied by Officer Babayco. The build

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ing is a two-story dwelling situate on the corner adjoining an alley on 22nd street. We entered the building that evening. We went up to the back door and knocked. The defendant came to the door. We said, ‘Hello, Speed,’ and the defendant opened the door and admitted us. I had not been in that house before that night. We had been around there but not in the house. We noticed frequent visitors to the place, men and women entering the house during the day and during the night, machines driving up, taxis, people coming in and staying a little while and coming out again. Some of the evenings there were constant machines there, sometimes two or three at a time. At the particular night in question, we went into the kitchen off the back porch. The defendant was there. There was a lady there also. She gave the name of Euth Davis. When we got inside we told him we were police officers and had come to search the place. We asked him if he lived there and he said he did. We noticed the people coming and going but could not say as to their sobriety, but we have seen people that were coming in and out of there, staying a few moments and coming out. We could hear them talking a half a block away. We were not close enough to tell whether they were under the influence of liquor. We searched the place. I went into the pantry, there was a sink there, lots of glasses, several empty bottles, a buzzer running to the front door. The button is in a cabinet right back of the front door in a sort of clothes cabinet. Mr. Babayco searched the upstairs. I saw the liquor that Mr. Babayco found. We found three one-gallon jugs of wine, four one-quart bottles of brandy, one quart bottle of wine, and a pint bottle of brandy. We took possession of the liquor and arrested the defendant and also Euth Davis. We did not know the defendant’s name, but we noticed that ‘Speed’ was what everyone else said who went to the door, so we gave the same password. We said, ‘Hello, Speed,’ and he opened the door. Since that time I have noticed the sign there reading ‘Furnished Eooms To Let.’ ”