266 P. 536 | Cal. | 1928
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 exceed *86 six months. The defendant appeals from the judgment.
[1] 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
[3] The defendant further contends that, as Trivet was a confessed bootlegger and admitted that he had testified falsely at the preliminary hearing because he did not want to incriminate himself on a charge then pending but since dismissed, there is no substantial testimony in the record to sustain the verdict. There was evidence on behalf of the defendant to the effect that Trivet stopped his automobile at defendant's place and tried to hold him up for money; that the defendant called for his gun, which his son brought to him, and that Trivet shot and wounded the *87 defendant as a result of the episode which the defendant relates. The record presents a sharp conflict in the evidence. The credibility of the witnesses and the weight to be given their testimony were, of course, matters exclusively for the jury to determine. In this state of the record the judgment cannot be disturbed on the ground of the insufficiency of the evidence.
[4] However, the judgment in its entirety cannot stand in view of the provisions of section 29 of title II of the National Prohibition Act (Fed. Stats. Ann. 1919 Supp., p. 215 [27 U.S.C.A., sec. 46]), providing for a maximum jail sentence of ninety days for the second offense, and the provisions of section
The judgment is modified by striking therefrom the following: ". . . and that he will not be confined in the county jail under any circumstances for more than a period of six months," and in lieu thereof the following is ordered inserted: "provided, however, that the duration of such imprisonment for default in the payment of said fine shall not exceed ninety days." As so modified the judgment is affirmed.
Richards, J., Seawell, J., Curtis, J., Langdon, J., and Preston, J., concurred. *88