This is a writ of error to review a judgment of conviction under two counts of an information charging the unlawful possession of intoxicating liquor and the unlawful maintenance of a common nuisance. The grounds for reversal are insufficiency of the evidence to support the verdict and judgment, double jeopardy, and misconduct on the part of certain members of the jury.
The sufficiency оf the testimony to support the verdict was not raised at the conclusion of all the testimony in thе court below, and for that reason the question is not properly before us for review. Under suсh circumstances courts will only look into the record far enough to see that there has been no miscarriage of justice, or that there is some testimony tending to support the verdict.
It appears from the testimony that prohibition agents entered a so-called clubroom оr café in the city of Los Angeles, where a number of men were assembled, some of whom were еngaged in drinking intoxicating liquor. Within the place were found a counter or bar, about 100 bottles of bеer, a pitcher containing about a quart of moonshine whisky, a' case of gin and whisky, and a large assortment of glasses of various kinds, some of which contained dregs of intoxicating liquor. There was no evidence of sales or other violations of the National Prohibition Act (27 USCA), aside from the-unlawful possession of the intoxicating liquor; but, notwithstanding this, we are far. from convinced that there wаs not substantial testimony tending to show that the place was maintained for the keeping and salе of intoxicating liquor within the meaning of the statute. The test of the statutory nuisance is not the number of sаles made or the length of time during which intoxicating liquor is kept on the premises. A single sale, or the kеeping of intoxicating liquor for a brief period, with other attendant circumstances, may be sufficient to constitute the offense. Singer v. United States (C. C. A.)
The claim of double jeopardy, because of conviction for unlawful possession and maintaining a common nuisance, is answered adversely to the plaintiffs in error by the decision of the Supreme Court in Albrecht v. United States,
It appears, from аffidavits filed in support of a motion for a new trial, that some of the jurors were observed reading the front page of a newspaper which contained comments on the trial, refleсting in a measure on the character or reputation of one of the plaintiffs in error, and also commenting on testimony of a prejudicial nature excluded by the court. The incident occurred before the argument and before the submission of the ease, and there was no shоwing that the question of misconduct might not have been called to the attention of the court bеfore the submission of the ease and before verdict. Had this been done, the court could hаve ascertained whether the newspaper article was in fact read by the jurors, and, if so, whether it would affeet their verdict, and the court could also have instructed the jury. to disregard thе newspaper comment, or declare a mistrial, if need be. Under such circumstances, we think the objection came too late, and that the complaining parties should not be рermitted to speculate on the result of the trial before calling the question of misconduсt to the attention of the trial court. Bowers v. United States (C. C. A.)
*317 It is further contended that there was a fаilure of proof as to the prior conviction of one of the plaintiffs in error. A judgment showing suсh conviction, and reciting that the plaintiff in error in question appeared in court in persоn and entered a plea of guilty, was offered in evidence; but, in opposition to the judgment and the recitals therein contained, the party against whom the judgment was rendered testified that “to his recollection” he did not appear in court or enter the plea of guilty as claimed. The instructions of the court have not been brought up, so that we are not advised as to the issues submitted to the jury. If the question of the presence of the party and the plea of guilty was in faet submitted to them, the jury may have found against the complaining party, and, if so, it is quite apparent that the uncertain testimony of an interested party, to which we have referred, did not as a mаtter of law overcome or disprove the recitals contained in the record of сonviction. For this reason we need not inquire whether testimony thus tending to impeach the judgment was competent or admissible for any purpose.
The judgment is affirmed.