People v. Lein

SHENK, J.

In the county of Riverside the defendant was charged by information with having intoxicating liquor unlawfully in his possession. He pleaded guilty to conviction of a similar prior offense, and pleaded not guilty to the offense charged in the information. On the trial the jury returned a verdict of guilty as charged. The trial court pronounced judgment that defendant pay a fine of $1,000 or be confined in the county jail one day for each two dollars of the fine, the total period of confinement not to ex

[86]

ceed six months. The defendant appeals from the judgment.

The defendant’s first contention is that the prosecuting witness Trivet was an accomplice; that the corroborating evidence was insufficient to convict the defendant under the provisions of section 1111 of the Penal Code, and that the trial court should have given an instruction covering the provisions of that section of the code. For the purposes of this opinion it is necessary to state only that said witness testified that he purchased fifty gallons of whisky from the defendant; that he helped the defendant carry some of the liquor from a cotton patch near the defendant’s shack and emptied it from its containers into certain other containers and, together with an additional quantity which defendant produced from “somewhere outside,” loaded the containers on his automobile. Just prior to driving away he and the defendant became engaged in a quarrel, as a result of which he shot at and wounded the defendant. There is no evidence in the record that Trivet aided or abetted defendant in obtaining possession of the liquor. If Trivet’s testimony be believed, and we must assume that the jury believed it, the transaction was a purchase and sale of liquor which was already in the defendant’s possession. In legal contemplation Trivet’s possession commenced when the sale was consummated and he drove off with it. The later possession of the purchaser is not the possession of the 'seller. There is not in such cases an identity, but merely a similarity of offenses. The possession of each was separate and distinct.

(People

v.

Galli,

68 Cal. App. 682 [230 Pac. 20].) The trial court did not, therefore, commit error in refusing to instruct the jury as requested.