Giannetti v. People, 12843.

• Decision Date: 18 May 1931
• Docket Number: 12843.
• Citation: 300 P. 573,89 Colo. 128
• Parties: GIANNETTI v. PEOPLE.
• Court: Colorado Supreme Court

300 P. 573

89 Colo. 128

GIANNETTI v. PEOPLE.

No. 12843.

Supreme Court of Colorado, En Banc.

May 18, 1931

Rehearing Denied June 22, 1931.

Error to District Court, Huerfano County; A. F. Hollenbeck, Judge.

Tony Giannetti was convicted of operating a still intended for the manufacture of intoxicating liquor, and he brings error.

Affirmed.

Romilly Foote and Angelo F. Mosco, both of Walsenburg, and John R Adams, of Denver, for plaintiff in error.

BUTLER J.

Tony Giannetti was convicted of operating a still intended for the manufacture of intoxicating liquor.

Giannetti's counsel, who did not represent him at the trial, contend that the conviction was unsupported by the evidence and the law.

Giannetti was charged jointly with Joe Fricabrino and Joe Arrigio. His codefendants pleaded guilty. A separate information was filed against Cruz, who had not been tried at the time of the Giannetti trial.

On October 30, 1930, two federal prohibition officers went to a farm owned by Felix Cruz. Attracted by a strong odor of mash they went to an old adobe house on the premises and there found a still in operation. Fricabrino was preparing mash in a barrel. Arrigio was pumping up a pressure tank. Giannetti was not there at the time. There were in the building, in addition to the still, a new pressure tank, three fifty-gallon barrels of mash and sixteen fifty-gallon empty barrels, twenty gallons of fresh made whisky, some alcohol meters, sugar, corn, yeast cartons, and other things used in the manufacture and distribution of whisky.

There was introduced in evidence a lease by Cruz to Giannetti of three rooms in that old adobe house, one acre of cultivated land, and some orchard trees. Both Cruz and Giannetti signed the lease. It was dated May 1, 1930, and ran 'for and during and until' October 30 of the same year. It provided that the lessee should not use or permit the premises to be used for any purpose prohibited by the laws of the United States or of Colorado. There was in evidence another paper purporting to be a lease of the same premises. It is dated October 1, 1930. The name of the lessee does not appear in the paper. In the typewritten copy inserted in the record before us the names of Fricabrino and Arrigio had been written in and then erased, leaving only faint traces of the names. No one signed the paper as lessee, and it was found in the possession of Cruz.

Cruz testified that when he discussed the matter of leasing the property, Fricabrino and Arrigio were with Giannetti; that he leased to Giannetti, who thereupon paid the first month's rent; that Giannetti moved in in May or June; that 'they' brought 'their stuff' there in a truck; that Giannetti drove the truck; that Giannetti came back occasionally, not very often; that he came in a truck; that three or four days before the officers came witness saw Giannetti come there with a few empty barrels; that at one time Giannetti had some sugar there in his car; that when witness saw that they had a still there he called it to the attention of Giannetti, Fricabrino, and Arrigio; that 'they said that * * * they have paid the rent to me, and they own the place there at the present time and they could keep on working'; that they did stop however, for a while. With reference to the second lease, the witness said that he had agreed to lease to Fricabrino and Arrigio after Giannetti's lease was over. He also testified that he saw 'them' making whisky in that house, 'beginning some time in July'; that for...