Costello

The defendant was charged in an information containing two counts with the offenses of “selling intoxicating liquor’' and with “maintaining a common nuisance, towit: a certain building in the town of Victorville, in the County of San Bernardino, State of California, in which intoxicating liquors were wrongfully kept and unlawfully sold.” The jury found the defendant not guilty of count one charging him with the sale of intoxicating liquors in violation of the Wright Act (Stats. 1921, p. 79), but did return a verdict of guilty of the offense of maintaining a nuisance. The lower court granted the defendant’s motion for ■ a new trial and the People prosecute this appeal from that order.

The defendant operated a pool-hall and soft-drink stand .in Victorville. The evidence shows that he carried and sold “Amargo Bitters,” “Padre Wine Tonic,” “Power Wine Tonic” and “Peptol Wine Tonic.” The testimony of the prosecution was to the effect that the bitters were not only sold by the bottle but also by the glass. One witness • testified that during November, 1928, or two months prior to the arrest of defendant the sale of these bitters by the glass averaged in his judgment three bottles a…