227 P. 978 | Cal. Ct. App. | 1924
The defendant was tried and convicted on an information charging him with having on or about the third day of July, 1923, in the county of Sacramento, state of California, unlawfully sold two bottles of wine contrary to the provisions of what is commonly known as the Wright Act of the state of California (Stats. 1921, p. 79). The defendant's motion for a new trial being denied, he prosecutes this appeal therefrom and also from the judgment of conviction in said cause.
As grounds for reversal the defendant alleges improper admission of testimony, erroneous instructions and illegality of sentence. *407
The testimony introduced by the People is to the effect that the two bottles of wine were sold by the defendant at the time stated, at his place of residence, to wit, 500 Q Street in the city of Sacramento. It appears that the witness Horstmeyer, a police officer of the city of Sacramento, who was acquainted with the premises and had visited the same prior to the third day of July, 1923, went to the defendant's residence at about the hour of 9 P. M. on the day in question and personally solicited of the defendant the purchase of two bottles of wine. The witness and the defendant went into the dining-room of the defendant's residence and some conversation was had as to the kind of wine desired by the purchaser, whether he wanted sweet or dry wine. The witness replied that he wanted a bottle of each. He also testified that the defendant went into another part of the building and returned with two quart bottles, delivered them to the witness and the witness paid the defendant the sum of two dollars for the two bottles of wine. These bottles of wine were subsequently analyzed and found to contain a much greater quantity of alcohol than that allowed in the Volstead law. The two bottles of wine in question were properly identified and admitted in evidence. After this evidence had been introduced the prosecution placed upon the stand a witness by the name of E. J. Cox, also a member of the police department of the city of Sacramento. This witness testified that he went to the premises of the defendant on or about the thirteenth day of July with a warrant of arrest for the defendant and also with a search-warrant authorizing him to make a search of the premises known as 500 Q Street and then occupied by the defendant, that upon making a search of the premises he found and seized forty-five bottles of wine, five demijohns of wine and three barrels of wine. All of the wine seized, excepting one or two bottles, was found in the basement of the premises occupied by the defendant.
The defendant denied the sale of the wine and in explanation, or as an attempt to refute the testimony of the witness Cox as to the possession of the large quantity of wine, introduced in evidence a permit to make 200 gallons of grape juice. The defendant further in his testimony admitted the possession of the wine, part of which he described as claret and part as white wine, and also that one of the barrels of wine had fermented and become vinegar. The defendant also, upon cross-examination, without any objection being interposed, *408 testified that he had paid a fine of two hundred dollars on account of the illegal possession of the wine in question.
[1] It is strongly urged by the appellant that the testimony as to the possession of a considerable quanity of wine herein referred to ten days after the date of the alleged sale, was not only erroneous but was seriously prejudicial. In behalf of this contention we are cited to a number of cases, notably,People v. Smith,
In 33 Cor. Jur. 752, a general rule is stated as follows: "On a trial for keeping liquor for unlawful sale, maintaining a liquor nuisance, carrying on the business of liquor dealer, or other like offense in violation of the liquor laws, evidence as to defendant's ownership or possession of intoxicating liquors, or of appliances or apparatus used in the manufacturing or selling of such liquors, at or within a reasonable time before or after the alleged offense, is ordinarily admissible, unless it refers to a time after the beginning of the prosecution, although it has been held that evidence of possession after the alleged offense is not admissible to prove possession at that time. Unless such evidence is too remote in time to be admissible, the disparity in time between it and the time of the alleged offense affects only its weight or probative value. In a prosecution for an illegal sale or disposition of liquor evidence of ownership or possession is admissible only in corroboration of other evidence as to the fact of a sale, and hence is incompetent and irrelevant, for the purpose of showing whether or not an unlawful sale or disposition was made, unless it is introduced in connection with other evidence of such sale or disposition." Only one *409 case is referred to in the notes to the text just quoted holding that such testimony is inadmissible. It will be noted that in the case at bar, testimony as to the actual sale was first introduced and then, under the rule stated, testimony as to possession may be admitted for the purpose of corroborating the evidence as to the sale.
In the case of State v. Legendre,
In Reub v. State, 93 Tex. Cr. 345 [
In Holmes v. State,
In the case of Smith v. State,
Again, in the case of Craig v. State,
In Wooten v. State,
In State v. Boynton,
In the case of Myers v. State, 52 Tex. Cr. 558 [
The same court, in Black v. State, 68 Tex. Cr. 151 [
Also, in the case of McCuen v. State, 75 Tex. Cr. 108 [
In the case of Patton v. State, 66 Tex. Cr. 259 [
A number of courts have held that evidence of the receipt of liquor prior to the date of the alleged sale to be admissible following the rule announced in the Texas case just cited.
In the instant case the defendant admitted the possession of wine. The mere fact that the wine was illegally in the possession of the defendant and established his guilt of having intoxicating liquors in his possession unlawfully, constituted no reason why the testimony should not be admitted as corroborative evidence of the testimony as to the illegal sale charged in the information.
The defendant also urges that the court committed prejudicial error in refusing to give the following instructions:
"You are instructed that all presumptions of law are in favor of the innocence of persons accused of the commission of crime, and every person so accused is presumed to be innocent until the contrary is shown, and until his guilt is established by the evidence in the trial of the case, to your entire satisfaction and beyond all reasonable doubt.
"The law is tender and careful of the lives and liberties of our people, and, in order to justify you in rendering a verdict, the effect of which may deprive a citizen of his life or liberty, every material fact necessary to establish the guilt of the defendant of the offense charged against him, whereby he may lose his life or liberty, must be established by those who are entrusted with the duty of prosecuting *412 him, to a moral certainty and beyond all reasonable doubt. The law does not place upon the shoulders of a defendant in a criminal action the burden of proving that he is innocent of the offense charged, but it does impose upon the prosecution the necessity of proving his guilt so thoroughly and conclusively as to satisfy the minds of the jury that he is guilty to a moral certainty and beyond a reasonable doubt, else he should be acquitted."
[2] All the correct portions of said proposed instruction were included in other instructions given by the court. As proposed by the defendant, the instruction is argumentative in form and the court very properly refused to give the same. The law is too well settled that neither the people nor the defendant is entitled to an argument from the court in the form of an instruction to require any citation of authorities.
[3] We have heretofore, in the recent case of People v. Lamb,ante, p. 263, [277 P. 969], considered and disposed of the objection that the court has no jurisdiction to impose a jail sentence for a first offense in selling liquor. We there held such objection untenable. Further consideration of that question is, therefore, unnecessary.
During the course of the trial the witness Horstmeyer was allowed to testify as follows: "I went to the defendant's place on the night of the thirtieth of June. Q. And what did you see that night in reference to people going into the house, Mr. Horstmeyer?" To this question the defendant objected that it was immaterial and not proper rebuttal. The objection was overruled and the witness answered: "I stood across the street for the purpose of trying to find out whom he would sell wine to." Mr. Russell, counsel for the defendant, made objection to that question as being a voluntary statement and the opinion and conclusion of the witness and asked that it be stricken out. The court denied the motion at this time, stating: "Proceed to finish your answer, and then I will rule. A. I stood across the street in the darkness of the shadow of a tree there, and I saw a car pull up; it was an Essex car; it pulled up, not directly in front of the house, but a little past the front of his house, and three young fellows got out, and two went in and one on the front stairs, and went right — Mr. Henderson (interposing): And were they carrying anything when they went in, Mr. Horstmeyer, that you noticed? A. Not anything; no. *413 Mr. Russell: Now, then, just a minute, if the court please. May I refer back to the previous question? Counsel for the People interrupted. I desire to make a motion. The Court: Yes. Mr. Russell: Now, your Honor, I desire to move to strike out the first portion of the witness' answer to the previous question in reference to his conclusion and his observation 'I stood there across the street for the purpose of observing,' — May I have the exact wording, Mr. Reporter, please? Mr. Henderson: I will submit, if your Honor please, that it is not any conclusion; that was just his object in standing there. He stood there, and he knows why he stood there. The Court: The motion to strike out will be denied. Mr. Russell: I move to strike out the entire answer, and those portions of it in reference to his standing there, as being not responsive to the question. The Court: Motion is denied. Mr. Henderson: All right. Q. You say these young men that got out of the Essex car didn't have anything in their hands when they went in. A. Nothing; their hands were free. Q. Did you see anything in their hands when they came out of the house, Mr. Horstmeyer? A. In one of them, — in one of the young men's hand, he had a package, wrapped up in newspaper."
[4] On direct examination the defendant testified that he had a great many visitors. One of his answers was: "Well, I got some roomers, and my family, and always I had visitors; you know, that time, my boy is sick in bed, you know, we have about fifty visitors every day." From this it follows that the mere fact of showing visitors additionally upon rebuttal could in no sense be prejudicial. [5] That the testimony we have here set out should have been practically all excluded by the court is beyond question. The reasons for the witness standing there and the reasons which actuated him had nothing to do with the guilt or innocence of the defendant. Of course it is apparent that the prosecution desired the inference to be drawn from the fact that one of the young men emerged from the residence with a package wrapped in a newspaper, that the defendant had then and there sold a bottle of wine, but as that was simply a matter of conjecture, we do not think it sufficiently prejudicial, in view of section 4 1/2 of article IV of the constitution, to warrant a reversal. [6] We think the same is true in relation to the reference made by counsel for the People in his address to the jury concerning the foreign lineage of *414 the defendant, and the indisposition of such persons to conform to American customs and laws. Such remarks are improper and should have been excluded by the court, but, though improper, did not, in our opinion, result in a miscarriage of justice, and furnish no grounds for a reversal of the judgment.
We think the order denying the motion for a new trial and the judgment entered herein should be affirmed, and it is so ordered.
Weyand, J., pro tem., and Finch, P. J., concurred.