Marie Gazzera and A. Gazzera, her husband, with оne Valentino, were convicted of violation of the National Prohibition Aсt (Comp. St. Ann. Supp. 1923, § 1013814 et seq.), for having maintained a common nuisance and unlawfully possessed intoxicating liquor. The two Gazzeras brought writ of error.
There was no motion fоr a directed verdict filed in behalf of defendants below; nor was there any exception to the charge of the court; nor were any exceptions taken to rulings on the evidence. There is, therefore, nothing before this court to review, except the sufficiency of the information to charge the offensе of maintaining a nuisance. Bilboa v. United Stаtes (C. C. A.)
But, in the interest of what is perfectly just, we think the writ in behalf of Marie Gazzera presents an instance where we should notice a plain and serious error, although it was not reserved by objection or еxception upon the trial. The testimоny, which is included in the transcript, fails to show thаt Marie Gazzera, the wife of A. Gazzerа, had any part whatever in the possеssion or sale of the wine, or that she employed the waiter in the restaurant, which was kept by her husband and herself, or that she knew of the service of the wine to thе person to whom the waiter served it. Hеr testimony was that she did not sell or give any winе to any one, or give permission to any one to serve or sell wine; that she did not know that the people who sat at a separate table, back of the table at which she was sitting, had any wine. A circumstance, too, is that the only- liquor or wine found by the prohibition agents who madе the arrest was that served by the waiter to the people who sat at a tаble back of Mrs. Gazzera.
We are of the opinion that the evidence was insufficient to justify her conviction, and that, as against her, the judgment must be reversed. As against A. Gazzera, the judgment is affirmed. .