Opinion
Hearing Granted by Supreme Court Dec. 6, 1928.
Appeal from Superior Court, San Bernardino County; Chas. L. Allison, Judge.
F. E. Clemett was convicted of the unlawful possession and the unlawful operation of a still, and he appeals. Affirmed.
COUNSEL
Henry C. Huntington, of Los Angeles, and H. William Hess, for appellant.
U.S. Webb, Atty. Gen., John L. Flynn, Deputy Atty. Gen., George H. Johnson, Dist. Atty., of San Bernardino, and James L. King, of San Bernardino, Deputy Dist. Atty., for the People.
OPINION
YORK, J.
This is an appeal from a judgment of conviction and from an order denying motion for a new trial.
The defendant was convicted on two counts of an information, the first count charging the unlawful possession of a still designed for the manufacture of intoxicating liquor for beverage purposes, and the second count charging defendant with the unlawful operation of a still, or a stilling device designed for the manufacture of intoxicating liquor for beverage purposes.
The record of the evidence is somewhat complicated by reason of the fact that there were originally several defendants, the defendant, F. E. Clemett, being the only party convicted. There was sufficient evidence for the jury to find the defendant, Clemett, guilty for a violation of both counts of the complaint. As we read the act (Stats. 1927, p. 497; Act 3795, Deering’s Gen. Laws), it is clear that although a person might be charged under said act with one offense only, as suggested by the appellant’s opening brief, the evidence in this case shows circumstances from which the jury could find that the defendant was in the unlawful possession of a still as charged in the first count, and there is also sufficient circumstantial evidence to support the finding of the jury that the defendant was guilty of the unlawful operation of the still as charged in the second count; therefore two separate offenses under said act were, in the instant case, both alleged and proven.
A similar question-that is that one offense only could be charged under said act, no matter how many different provisions thereof were alleged and proven to have been violated-was attempted to be raised by the petitioner in the matter of the application of Louis Chaus for a writ of habeas corpus, determined in the Second Appellate District, Division 2, June 2, 1928, reported in 268 P. 422. The cases therein cited seem to amply sustain the order of the court in that matter in discharging the writ and remanding the petitioner.
As to the sufficiency of the evidence, it is true that it is circumstantial, but as there was sufficient evidence for the jury to find that the defendant committed the acts as charged in the information, this court cannot therefore interfere with such verdict. There is evidence in the record showing that the premises on which the still was located and operated was leased by defendant, Clemett, under the name of G. L. Johnson; that he signed such fictitious name thereto; and that he claimed to be a brother of the man who accompanied him when he first introduced himself as G. L. Johnson to the owner of the premises. When on the stand, defendant, Clemett, denied that he had ever given his own name as G. L. Johnson, and swore positively that he had not signed the lease, but that the lease was signed by the man who accompanied him. There is evidence in the record that the defendant, Clemett, stated that he wanted to raise chickens on the property, and that he had approximately 750 chickens to place on the property at once. But there is also in the record evidence that there were but few chickens ever on the premises during his tenancy.
In his evidence defendant admitted having been upon the premises several times during the time when the evidence shows that the still must have been installed and in operation. The still was warm when the place was raided, and a large amount of alcohol and mash and equipment for the marketing and preparing of illicit liquor was found upon the place. The premises were evidently used only to operate a still, and there was evidence that machines were constantly going and coming to and from the place during the tenancy of appellant.
Defendant denied that a picture of his wife was that of a woman whom he had introduced as Miss Frederickson, when he had introduced her as the purchaser of the premises. This picture was positively identified by several witnesses as being a picture of the woman he had introduced to them as Miss Frederickson. Throughout the testimony of defendant, Clemett, he made contradictory statements, and his testimony in reference to a check for $1,000 which was made out to G. L. Johnson, which he admitted having indorsed with the name of G. L. Johnson and deposited in a bank to the credit of G. L. Johnson, and his statement that thereafter he drew a check on that account and signed the name of G. L. Johnson, was sufficient, when considered with the facts in evidence, for the jury to scan with more than mere suspicion his entire connection with the matter.
The still, under the evidence, must have been installed during his tenancy. The record shows that during the term of the lease, Clemett, under the name of G. L. Johnson, paid rent from time to time during the time the still must have been in operation; that he stated to the owner of the land that he wanted to keep the land during this time, and that he wanted to purchase the land, as he was satisfied with it; but later he stated that the purchaser was a woman whom he stated was Miss Frederickson, but who was identified by several witnesses as being the woman whose picture was admitted by the defendant, Clemett, to have been a photograph of his wife. And this woman, who was identified as being his wife, was seen frequently on the premises during the time when the still, according to the evidence, must have been operated. His entire testimony is given in an indirect, insincere manner, and the circumstances related by him are very unusual. His testimony that he received $500 from the mysterious man who, he said, signed a lease of the property for only $25 per month, as G. L. Johnson, for services rendered, except securing said lease, is also a circumstance that the jury could take into consideration as evidence that he was directly connected with the ownership and operation of the still. His constant reference to this man Johnson as his brother is also a peculiar circumstance. He stated that he introduced him merely as Brother Johnson, but this is positively denied by several witnesses. His testimony in reference to the escrow and matters preceding the escrow, the way in which the money was handled that went into the escrow, are circumstances which, when taken with the whole evidence in the matter, were strong enough for the jury to find that he was still handling the property and that he had possession of the still and was also operating the same.
We find no substantial error in the record as to any ruling of the trial court, and the instructions given to the jury fully cover the law of the case. No error has been called to our attention by appellant. The judgment and order are affirmed.
We concur: CONREY, P. J.; HOUSER, J.