Locurto

The defendant was tried before a jury upon an information charging a misdemeanor in the maintenance of a common nuisance. Upon the verdict of guilty he was sentenced to one year’s imprisonment and to pay a fine of one thousand dollars. From the judgment and from the order denying his motion for a new trial the defendant has appealed upon typewritten transcripts.

The facts are fairly stated in respondent’s brief, from which we quote: “On the evening of July 19, 1928, two federal prohibition agents drove into the yard of the premises situated at the corner of San Salvador and Race Streets in the City of San Jose. The defendant John Locurto was at that time coming out of the back door of the house, and told the agents that they were on the wrong side of the fence. The defendant then got into his machine and drove out into the street and then turned into the yard next door. The agents followed shortly after.

“When the agents entered the house the defendant was standing at the bar, and one of the agents laid a dollar on the bar, and asked the defendant to drink with them. The defendant, who was playing one of the slot machines, turned around and had a drink of whiskey. The agent paid…