233 P. 413 | Cal. Ct. App. | 1924
The information filed in this case charged the defendant with the unlawful possession of intoxicating liquor on the thirteenth day of January, 1924. In a separate count it charged:
"That prior to the 13th day of January, 1924, to-wit the 5th day of November, 1923, defendant above named was convicted in the justice's court of Fourth Township, Tuolumne County, California, on a charge of unlawfully having and possessing intoxicatingliquors, containing in excess of one half of one per cent ofalcohol, which was fit for use for beverage purposes, contrary to the provisions of the act commonly referred to as the Wright Act." *491
The information then concluded in the stereotyped language, "contrary to the form, force and effect of the statute in such case made and provided, and against the peace and dignity of the people of the state of California."
The defendant entered a plea of not guilty and denied the prior conviction. The jury returned a verdict of guilty as charged and found that the defendant had suffered a prior conviction of violation of the Wright Act. (Stats. 1921, p. 79.) This appeal is from the judgment entered on the verdict and from the order denying defendant's motion for a new trial.
The sheriff of the county testified that on the thirteenth day of January, 1924, he went to defendant's hotel, armed with a search-warrant, for the purpose of searching the premises for intoxicating liquors; that when he drove up in his automobile the defendant's wife "hollered `Charley' three times very loud, or `Carlo'; it sounded like Charley to me"; that the witness immediately ran to the kitchen and that about the time he arrived there the defendant "dumped some liquor into the sink from a coffee-pot; that the witness saw the discoloration in the sink made by the liquor and stooped over the sink and smelled the liquor; that the defendant was very pale and washed the coffee-pot with a dish rag; that when the witness turned away from the sink the defendant "turned to the stove and got a pitcher of hot water and flushed it into the sink, and he flushed this stuff out"; that the witness "had considerable experience in the smelling of alcoholic liquors" and "can determine from the smell of alcoholic liquors whether it is whisky, wine, or brandy"; that the liquor turned into the sink was "corn whisky"; that there was "just a small odor of liquor" in the coffee-pot after it had been washed; that he made a thorough search of the premises but found no other intoxicating liquor except a bottle in a guest's room. It is not claimed that this bottle of liquor was in defendant's possession. The defendant denied that he heard his wife call to him, or that he had any liquor in his possession or turned any into the sink. He also denied other parts of the sheriff's testimony which it is not material here to discuss.
[1] The last witness produced by the People was the justice of the peace of Fourth township, who identified the record of the alleged prior conviction. The complaint in *492 that action charged that the defendant, on the first day of November, 1923, "did then and there willfully and unlawfully have, possess and have in his possession equipment, ingredients and property designed and used in the manufacture of intoxicating liquors for use for beverage purposes, said equipment consisting of a still with grain, mash and container for the same." To this charge the defendant entered a plea of guilty on the fifth day of November, 1923. On the same day he was sentenced to pay a fine of $500, which he immediately paid. The defendant objected to the introduction of the record in evidence on the ground that it showed a conviction of a different offense than that charged in the information. On motion of the district attorney, and over defendant's objection, the court then ordered the information amended by striking out the words thereof which are herein italicized. The record of the prior conviction was then admitted in evidence over defendant's objection.
Section
Had the amendment been made before trial, with the opportunity for defendant to admit the previous conviction, his rights would not have been prejudiced thereby, and it will be sufficient to give him such opportunity before the retrial of the case. While the charge of the prior conviction is not well expressed, as the information now reads, there is no doubt as to what is intended.[4] "It is not necessary to allege previous convictions with the same particularity as if the party was charged originally with the commission of such offense." (31 C.J. 735.) In State
v. Gilfilen,
[5] Appellant contends that the admission of testimony to the effect that the defendant's wife warned him of the approach of the sheriff was violative of the statutory provision prohibiting a husband or wife from being examined for or against the other without the other's consent. (Code *494 Civ. Proc., sec. 1881, subd. 1; Pen. Code, sec. 1322.) It is clear that the sections cited have no application. Her warning, if given, was not in the nature of an admission of anything that her husband had done and the testimony relative thereto was not introduced as an admission by her. Such evidence was admissible only because the defendant acted upon the warning in endeavoring to dispose of the liquor alleged to have been in his possession.
[6] Appellant urges that there is no evidence of the character of the alleged liquor except the smell thereof, and that hence it is insufficient. The attorney-general well says: "Smell is one of the senses by which a human being receives and records facts, the same as sight, touch, hearing and taste. It is as accurate as any of the senses. . . . It is within the common knowledge of all that the sense of taste depends to a great extent upon the sense of smell. This fact is established by the well known fact that if the nose is held, there are many materials which the sense of taste cannot distinguish." It is not necessary, however, to decide whether the sense of smell is sufficient to determine the character of liquors. In addition to such evidence, the jury had the right to consider the defendant's actions with relation to the warning given him, including his pale face and his act of flushing out the sink. The sheriff also testified that he observed the color of the liquor. All of this evidence, considered together, was sufficient to justify the verdict. The question for the jury to determine was one of fact upon which their verdict is conclusive on appeal. [7] While no case has been discovered which holds that the smell of a liquor is or is not sufficient evidence of its character to justify a conviction, it has been held that a witness may testify as to the character of a liquor from its color, taste, or smell. (UnitedStates v. Borkowski, 268 Fed. 408; Finch v. State,
The judgment is reversed, with direction to the trial court to permit the defendant to answer whether or not he suffered the alleged previous conviction.
Hart, J., and Plummer, J., concurred. *495