251 P. 222 | Cal. Ct. App. | 1927
Defendant appeals from a judgment of conviction of the offense of "maintaining a place where intoxicating liquor was manufactured and kept."
The prosecution was had under the provisions of the Wright Act (Stats. 1921, p. 79), which in terms adopts the provisions of the National Prohibition Act or the so-called Volstead Act, of date October 28, 1919, and which latter act among other things contains the provision that:
"Any room, house, building, boat, vehicle, structure or place where intoxicating liquor is manufactured, sold, kept or bartered in violation of this title, and all intoxicating liquor and property kept and used in maintaining the same, is hereby declared to be a common nuisance," etc.
The information charged that defendant "did wilfully and unlawfully maintain a place where intoxicating liquor was manufactured and kept, . . ."
[1] Appellant contends that because it is not alleged in the information that the intoxicating liquor was manufactured *585 and kept "for beverage purposes" or "for sale, barter or other commercial purposes" the information failed to state facts sufficient to constitute a public offense.
In support of such contention appellant relies principally upon the cases of People v. Mehra,
It is apparent that each of the authorities to which reference has been had is pertinent and applicable to the issues herein involved, and in the absence of countervailing authorities, if not wholly convincing, would be most persuasive. It remains, however, to consider certain other cases directly bearing upon the question of the sufficiency of the information. In each of the several authorities to which attention has been directed the importance to be placed on a proper construction or interpretation of the word "kept" is emphasized. In the case ofStreet v. Lincoln Safe Deposit Co.,
In Singer v. United States, 288 Fed. 695, a conclusion identical in all respects with that reached in the case last cited is reached by the circuit court. In the Mehra case,
It therefore may be accepted as having been judicially determined that the word "kept," as used in the section of the National Prohibition Act here under consideration, carries with it the meaning that the intoxicating liquor was illegally held or stored for the purpose of selling the same, or of devoting it to other commercial purposes. The language used in the pleading to which objection is made may therefore be said to have legally conveyed to the defendant the information that, included within the charge against him, he was accused of the offense of unlawfully keeping intoxicating liquor for sale, barter, or other commercial use. [2] But aside from such judicial interpretation of the word "kept," it is settled law that, generally speaking (subject to some exceptions), an information drawn substantially in the language of the statute is sufficient. (14 Cal. Jur., secs. 27, 28, and cases there cited.)
In the case of People v. Johnson,
In People v. Frankovich,
As a conclusion to be deduced from the several authorities to which reference has been had, it is clear that the defendant was in nowise misled by reason of the form of the accusation, but, to the contrary, that in law he was fully cognizant of the charge that was preferred against him.
[3] It is also urged by appellant that the information is defective in that it fails to state the particular place in the county of San Bernardino where the alleged offense was committed. But it appears that such a statement is unnecessary. (People v.Geiger,
[4] Prejudicial error is also predicated upon the refusal by the trial court to give to the jury each of three several instructions, by which it was proposed to inform the jury that, before the defendant could be found guilty of the offense of which he was charged, the jury must be convinced from the evidence beyond a reasonable doubt that the intoxicating *588 liquor alleged to have been kept at the place specified in the information was manufactured or kept by the defendant for thepurpose of sale or barter, or other commercial purposes.
By reference to the authorities cited herein, particularly the cases of Street v. Lincoln Safe Deposit Co.,
The judgment and the order denying the motion for a new trial are reversed.
Conrey, P.J., and York, J., concurred.
A petition by respondent to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on March 3, 1927.