People v. Buttulia

LANGDON, P. J.

This is an appeal by the defendant from a judgment entered upon a verdict of a jury finding him guilty of illegally possessing intoxicating liquor on the eleventh day of April, 1924. Defendant admitted the charge of prior convictions of the same offense.

[446]

The first point made upon appeal is that the information fails to charge a public offense because it fails to negative the excepted uses mentioned in the Volstead Act in that it does not state that the liquor was not possessed by defendant in his private dwelling, occupied by him and possessed merely for his personal use and consumption. No demurrer was interposed to the information upon this ground and the objection is made for the first time upon appeal. We shall not attempt to differentiate this case from the federal cases relied upon by appellant.any "further than to point out that upon the present situation there operates the wholesome provision of section 4% of article VI of our constitution. It is clear that even though the contention of appellant be upheld, the defendant was not prejudiced by the defect in the information, because his sole defense was an absolute denial of the possession of the liquor and there was no contention made that the liquor was legally possessed by him. A case similar in principle is the case of

People

v.

Bonfanti,

40 Cal. App. 614 [181 Pac. 80]. There the court discussed an information charging an assault with intent to commit rape which omitted to allege that the woman assaulted was not the wife of the defendant. While such an information did not state a public offense, it was held that after trial and conviction, where the evidence showed that the victim was not the wife of defendant, the defect in the information would not warrant a reversal of the judgment. The court said: “An examination of the record immediately discloses that the omission in question affected the trial not at all; in fact, the trial proceeded as if the allegation were there. ... It could not be contended, even by the defendant, that if the information had contained the statement that the victim of the assault was not his wife, the trial would have proceeded with one iota’s difference from the course it took, or that the verdict of the jury or the judgment of the court would have been other than it was. ’ ’