People v. Pagni

FINCH, P. J.

The defendant was charged with a single unlawful sale of intoxicating liquor, alleged to have been made in April, 1923. She was convicted and this appeal is from the judgment of conviction .and the order denying her motion for a new trial.

Allen B. Silvius, a detective employed by the grand jury during April, 1923', testified that in the early evening of April 21st he went to defendant’s residence and asked for wine; that defendant said she was afraid to sell any wine but gave the witness a drink, for which she made no charge and “said to come back a little later”; that he returned at about 11 o ’clock the same evening and asked her for a bottle of wine; that she then gave him a bottle of wine, for which he paid her one dollar; and that he turned the bottle of wine over to the chief of police. The bottle of wine was admitted in evidence. A chemist testified that the wine contained 11.95 per cent of alcohol by volume.

H. A. Rodness, a police officer of Sacramento, testified that on the 28th of February, 1923, he and a “lady operative” went to defendant’s residence. His examination then proceeded as follows: “Q. And did you see Mrs. Pagni at that time? A. We did. Q. Have any conversation with her? A. We did. Q. And what was that conversation? ... A. Went there with a lady friend the first time, at ten thirty, and we went in there and knocked on the door, and the first thing she says, she says: ‘What do you want?’ I says: ‘We want some drinks,’ and she asked what I wanted, and I said I wanted wine. She dished us each out a glass of wine, and I gave her a dollar for the two glasses of wine. Mr. Stewart: Well, Mr. Henderson, what.is the purpose of that? Mr. Henderson: We are introducing this testimony ... to show intent to violate the law. The Court: To show an intent to make a sale? Mr. Henderson: To show an intent to make a sale. . . . Mr. Stewart: For the sake of the record, I make the objection "that it is incompetent, irrelevant and immaterial. The

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Court: Objection will be overruled. . . . The evidence of this sale is not admissible to prove that the defendant made the. sale as charged in the indictment but, if there is evidence introduced that satisfies you that she did make the sale alleged in the information, then this evidence may be considered by you in ascertaining or determining the intent of the defendant in making the sale.” The district attorney then proceeded, without objection, to prove that on the same occasion the defendant treated the police officer and his lady friend to wine and that he purchased a bottle of wine from defendant. This bottle of wine was admitted in evidence and the testimony shows that it contained 13% per cent of alcohol. Counsel for defendant objected to the admission in evidence of the bottle of wine and the objection was overruled. The defendant testified on direct examination as follows: “Q. I will ask you, Mrs. Pagni, if you know Allen B. Silvius? A. No, I don't know him. Q. Referring to People’s Exhibit One, I will ask you if you, on the 21st day of August, sold this to Mr. Silvius, for the sum of one dollar? A. I didn’t sold it to him; this is mine, but not the other one. ... I paid the fine already for that. . . . Q. I will ask you, Mrs. Pagni, if, on the twenty-eighth day of February, 1923, you sold this bottle to Mr. Rodness? A. I sold to the lady that he was with him, because she was my friend all the time.” On cross-examination she testified: “Q. Referring to People’s Exhibit One, Mrs. Pagni, did you say that you did not sell that to Mr. Silvius? A. No; I had no such a quality as the wine in my house. My wine were black. Q. Your wine is black? A. I had it, just a half gallon, that the policeman took away from me. Q. Now, you have been accustomed to having wine upon your premises, Mrs. Pagni, haven’t you? A. Some time I go from washing in another person’s house, and they give me, sometimes, a gallon of wine, for my own use. . . . Q. Now, this second bottle, People’s Exhibit Two, Mrs. Pagni, you say you did sell that bottle to a woman with officer Rodness because she was a friend of yours? A. The first bottle, I mean to say. Q. Well, which one is the first? Mr. Stewart: Well, if the court please, I want it understood that the first bottle merely goes to the intent. . . . Q. Then, People’s Exhibit Two was the bottle that you sold to Mr. Rodness and the woman that was with him? A. Yes, sometime, if she will bring me a bottle of