Heitman

Heitman was convicted under an information charging, in count 1, that he maintained a common nuisance on or about June 4, 1923, at 950 Hampshire street, San Francisco, and, in count 2 that, at the above-described place he possessed certain intoxicating liquor, and, in count 3, that at the same time and place he had in his possession certain property designed for the manufacture of intoxicating liquor.

There was testimony on behalf of the government that a still and a quantity of liquor, described in the information, were found in a loft of a building at 950 Hampshire street, San Francisco, and that defendant had been seen entering the building in which the liquor and still were found, although he was not there when arrested. One of the witnesses for the prosecution testified that he rented the upper floor of the building in which the liquor and still were found to one Harris; that the premises were at 590 Hampshire street, San Francisco. Defendant introduced testimony to the effect that 950 Hampshire street was three or four blocks away from 590 Hampshire street, and that the paint shop with the loft upstairs, which had been described by the witness, was at 590 Hampshire street,…

(dissenting). I agree that there was failure to sustain the count which charged the maintenance of a nuisance. I cannot agree, however, that the judgment on the other counts should be reversed. The officers took possession of the premises on which there was in operation a large still, supplied with an abundant quantity of material for the manufacture of moonshine whisky. Prior to that timé the plaintiff in error had been under observation, and on several occasions had been followed by one of the officers to the premises upon which the still was operated. While the officers were in possession of the premises, they arrested the plaintiff in error under the following circumstances: They had taken in charge the man who, as manager, was conducting the distilling operations. The plaintiff in error approached, and the manager said to the officers: “Here is one of them.” The officer replied: “Who operates the still?” And he said: “Yes.” “All right, Mr. Heitman,” the officer said, “you are under arrest.”- The plaintiff in error said: “Can’t we fix it up ?” And a little later he said again: “Can’t we fix it up, fellow, I am in a jam.” He made no response to the statement of the manager,…