p. 213Third Appellate District.THE PEOPLE, Respondent, v. MANUEL RICO, Appellant.Headnote
[1] Criminal Law—Conviction of Offense not Charged—Erroneous Rulings—Prejudicial Errors—Constitutional Law.—Where a defendant is convicted of an offense with which he is not charged, no erroneous rulings can be held as cured, or nonprejudieial, under the provisions of section 4% of article "VI of the state constitution.[2] Id.—Maintenance of Nuisance—Pleadings—Instructions—Possession of Intoxicating Liquor.—Judgment of conviction of maintaining a nuisance reversed upon the authority of People v. Buonocore, ante, p. 208, People v. Mehra, ante, p. 162, and People v. Puller, ante, p. 183.
(1) 17 C. J., p. 369, n. 6. (2) 33. C. J., p. 588, n. 43.
1, See 8 Cal. Jur. 402; 14 R. C. L. 211.
APPEAL from a judgment of the Superior Couft of Sacramento County. Charles 0. Busiclr, Judge.
The questions presented on this appeal are identical with those presented in People v. Buonocore, ante, p. 208, People v. Mehra, ante, p. 162, and People v. Puller, ante, p. 183.
George E. Foote for Appellant.
U. S. Webb, Attorney-General, and J, Charles Jones, Deputy Attorney-General, for Respondent.
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 Pac. 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
p. 214with,the instructions considered and held erroneous in the case of
People v.
Mehra, ante, p. 162 [ 238 Pac. 802 ], and
People v.
Fuller, ante, p. 183 [ 238 Pac. 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 of
People 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% 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 tern., and Finch, P. J., concurred.