Mazzola

The defendant, together with Rafael Cervantes and Orville H. Kilbourne, was charged by information filed by the district attorney of San Bernardino County with the offenses of possession of a still and operating a still, the first count alleging the possession and the second the operation. Cervantes and Kilbourne plead guilty. The jury found the defendant guilty of both counts and he appeals from the judgment and order denying his motion for a new trial.

The grounds set up by appellant as reasons for a reversal are four, as follows: (1) “The appellant was tried for two crimes based upon one transaction, which, under the law, constitute one crime only”; (2) “Two judgments in the case are pronounced against appellant for one crime”; (3) There is no testimony other than that of accomplices connecting or tending to connect appellant with the offenses; (4) The court erred in giving certain instructions.

It is to be noticed that the first two points raised by appellant are substantially the same and both will be determined by finding an answer to the question: Was the only act of possession of the still necessarily involved in that of operating the still? If the possession of which…