People v. Rico , 73 Cal. App. 213 ( 1925 )

The defendant was convicted of maintaining a nuisance and from the judgment following conviction appeals to this court. The information upon which the defendant was tried is identical in form and substance with the information in the case of People v. Salvatore Buonocore, ante, p. 208 [238 P. 812], save and except the location of the building or house in which the intoxicating liquors were found. To this information the defendant filed a demurrer in form and substance the same as that considered in the case just referred to, and for the reasons therein stated we hold that the demurrer should have been sustained. The instructions given in this case are identical with the instructions considered and held erroneous in the case of People v. Mehra, ante, p. 162 [238 P. 802], and People v. Fuller, ante, p. 183 [238 P. 809], and for the same reasons it must be held that the instructions were erroneous. This action was also prosecuted upon the fact that the defendant was found in possession of a small flask of intoxicating liquor, and for the reasons stated in the opinion filed in the case ofPeople v. Mehra, supra, it must be held that such fact does not constitute the offense of maintaining a nuisance. [1] Where a defendant is convicted of an offense with which he is not charged, no erroneous rulings can be held as cured, or nonprejudicial, under the provisions of section 4 1/2 of article VI of the state constitution.

[2] Upon the authority of the cases just referred to in the opinions, deciding the cases to which we have referred, it is ordered that the judgment of the trial court be, and the same is hereby reversed, and the cause remanded, with directions to the trial court to sustain the defendant's demurrer to the information filed in this case.

Thompson, J., pro tem., and Finch, P.J., concurred.