Boitano

This is a writ of error to review a judgment of conviction under the National Prohibition Act (Comp. St. Ann. Supp. 1923, § 1013814 et seq.). The information contains two counts. The first count charges the maintenance of a common nuisance at 879 Bryant street, San Francisco, on or about May 12, 1923, and the seeound count charges the unlawful possession of intoxicating liquor at the same place on the same date. The premises in question consisted of a saloon, restaurant, and living rooms. It appears from the testimony that the plaintiff in error occupied the premises with his family on and prior to the 23d day of January, 1923. On the latter date he abandoned the premises and moved to 1114 Montgomery street. So far as the record discloses, he had no connection with the premises or with the business there conducted since his removal therefrom.

In the latter part of February, 1923, one Battaglia moved into the premises, at 879 Bryant street and was occupying the same on the date mentioned in the two counts of the information. On the 12th day of May, 1923, Battaglia was arrested and tried in the police' court on a charge of violating the state act corresponding to the National…