Newton

Defendant appeals from a judgment of conviction of the crime of maintaining a common nuisance and from an order denying a new trial.

It was testified that defendant on March 27, 1931, was in charge of a restaurant in Gilroy, and that on that date two sheriff’s deputies entered the place and purchased from him two glasses of whisky and a pint of the same unlawful beverage. The restaurant was then searched and a bottle of whisky was found under the counter, and a larger quantity of liquor in the rear room. It was testified that the defendant admitted the ownership of the restaurant and of the liquor found. He denied the sales and the admissions testified to by the prosecution’s witnesses.

The information charged that “defendant did wilfully and unlawfully maintain a common nuisance, to wit, that said defendant . . . kept and maintained a place and building where intoxicating liquors, to wit, wine and whiskey, were kept, sold and stored ...” The charge was made pursuant to the Wright Act, which was founded on the Volstead Act. The latter act provides that “Any room, house, building, boat, vehicle, structure or place where intoxicating liquor is manufactured, sold, kept or bartered…