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District Court of Appeal, Second District, Division 2, California.


Cr. 3531.

Decided: February 25, 1942

Morris Lavine, of Los Angeles, for appellant. Earl Warren, Atty. Gen., and Lewis Drucker, Deputy Atty. Gen., for respondent.

Appellant was convicted of occupying an apartment with books, papers, apparatus, devise and paraphernalia for the purpose of recording bets on the results of horse races in violation of section 337a, subdivision 2 of the Penal Code. His appeal is based upon the grounds: (1) insufficiency of the evidence; (2) error in admitting intercepted telephonic messages without the consent of the sender as in violation of section 605 of the Federal Communication Act of 1934, 47 U.S.C.A. § 605, and of the fourteenth amendment to the Constitution of the United States; (3) error in the admission of evidence of discoveries made by unreasonable search and seizure, contrary to section 19, article 1 of the Constitution; (4) other errors in admitting evidence.

(1) A brief synopsis of the facts will serve as a complete refutation of the first claim. When the police knocked at the door of appellant's apartment, they were advised by the lady attendant that it was vacant and that the number they were looking for was upstairs. Having found the upstairs apartment vacant, they returned and rang appellant's door bell three times before he responded. In answer to the inquiry as to his immediate occupation, appellant replied that he was reading; but at that very moment the blinds were drawn and the room was dark. On their way upstairs, the officers heard appellant's telephone ringing; upon their entry into his apartment they found the telephone wires were cut. Upon reconnecting the wires, the telephone rang not less than fifty times, each of which calls was answered by an officer. Each patron gave his name and stated the bet that he wished placed. When the officers called appellant stated that his name was Jimmy. When a message came for Jimmy, appellant then stated that his name was George, the party addressed by practically all of the invisible clientele. The officers found in a drawer within the apartment a number of blank forms of A B C betting markers ordinarily used in bookmaking places. They found upon the person of appellant the key to the door of the apartment. The toilet contained small bits of paper containing figures. The dial of his radio was turned to the station which was at that time broadcasting horse races. Comparing the numbers given to them by the patrons who called over the telephone with names and numbers appearing in a racing bulletin of the same day, the officers found that each horse and each number designated over the telephone appeared in the bulletin and that the names of the race tracks mentioned in one of the telephonic requests were operating on that day in the United States.

The foregoing facts were sufficient to establish the purpose for which the room was occupied notwithstanding the denials of appellant of any knowledge of the use of the apartment for placing bets on horse races as well as claiming that he was a mere guest of the tenant for the time being. People v. Tepper, 36 Cal.App.2d 525, 527, 97 P.2d 1002; People v. Ryan; 15 Cal.2d 492, 102 P.2d 320. If the circumstances given in proof of the crime are such as would warrant a jury of reasonably minded persons in inferring the guilt of the accused, the appellate court is not justified in disturbing the verdict even though innocence might as readily have been inferred. People v. Martinez, 20 Cal.App. 343, 128 P. 952; People v. Newland, 15 Cal.2d 678, 104 P.2d 778.

(2) Appellant contends that the court committed prejudicial error in allowing police officers to testify to the contents of messages which came to the apartment over the telephone after they had gained entrance thereto. This contention is based upon the inhibitions of section 605 of the Federal Communications Act of 1934, Title 47, U.S.C.A., which provides that no person not authorized by the sender shall intercept or divulge the contents of any communication to any person, and no person not being entitled thereto shall receive any intercepted communication by wire or radio. Appellant proceeds upon the theory that an act of Congress has the sanctity of a constitutional provision. This is so fundamentally erroneous as to make a refutation thereof super–erogation. Even though the act of Congress is valid within the orbit of the activities of that department of the government, the operation of the statute can affect only those subjects over which the central government has jurisdiction. Section 605 was intended for the activities of officials and courts of the federal government and for no others. In matters involving solely procedure, state courts are not affected by acts of Congress. Subject only to the limitations of the federal Constitution, the state may establish its own procedure, People v. Nolan, 144 Cal. 75, 80, 77 P. 774.

Section 3, article 1 of the Constitution which makes California an inseparable part of the American union and acknowledges the Constitution of the United States the supreme law of the land does not deprive the state of its own sovereignty and of the power to regulate its own adjective law. Ibid. The purpose of the framers of the federal Constitution was to establish a government which should be supreme within its own sphere of action but which should not usurp any of the powers reserved to the states. McCulloch v. Maryland, 4 Wheat. 316, 4 L.Ed. 579. Accordingly the state may regulate its own court procedure in accordance with the genius of its own laws and institutions so long as it does not offend some vital principle, the protection and operation of which has been made a part of the organic law of the union. Snyder v. Commonwealth of Massachusetts, 291 U.S. 97, 54 S.Ct. 330, 78 L.Ed. 674, 90 A.L.R. 575.

The principle of due process is not involved in the question as to whether section 605 should govern proceedings in a state court. Whenever a criminal prosecution in a state court is based upon a law not in itself repugnant to the federal Constitution and the trial of the action is conducted with due process and according to the established procedure for judicial proceedings by the law of the state, it violates no clause of the federal Constitution. Frank v. Mangum, 237 U.S. 309, 326, 35 S.Ct. 582, 59 L.Ed. 969. In truth the power of a state to regulate its own court procedure is substantially unrestricted by any power it has granted. Jordan v. Massachusetts, 225 U.S. 167, 176, 32 S.Ct. 651, 56 L.Ed. 1038. The cases of Weiss v. United States, 308 U.S. 321, 60 S.Ct. 269, 84 L.Ed. 298, and Nardone v. United States, 302 U.S. 379, 58 S.Ct. 275, 82 L.Ed. 314, relied upon by appellant, do not support his contention. Both of these decisions arose out of prosecutions in the district courts of the United States. The proof offered in each case was such as congress sought to inhibit in the enactment of the Federal Communications Act. Merely because it was by those decisions held that under section 605 intrastate messages may not be divulged in a federal court they are not for that reason authority for controlling procedure in a state court. Under the interstate commerce clause, Congress has the power to regulate intrastate transactions when necessary for the protection of interstate commerce. Const. art. 1, § 8, cl. 3. But that power does not enlarge the authority of congress to make rules of procedure for state courts. Since the act was designed as a rule for federal courts the evidence procured by means of intercepting any wire or wireless communication is not admissible in such courts.

The act does not extend to intrastate telephonic conversations. United States v. Bruno, 2 Cir., 105 F.2d 921; Bruno v. United States, 308 U.S. 287, 60 S.Ct. 198, 84 L.Ed. 257. It is only when an intrastate communication gained by tapping telephone wires is offered in a federal court that it is inadmissible. Sablowsky v. United States, 101 F.2d 183, 189. No provision of the federal Constitution is violated by intercepting intrastate communications. Valli v. United States, 1 Cir., 94 F.2d 687; Id., 303 U.S. 632, 58 S.Ct. 760, 82 L.Ed. 1092. In the absence of a specific grant in the federal Constitution, it cannot be said that it was the intention of the framers of that instrument to confer upon the central government the power to prescribe rules of evidence for the courts of the several states. Cooley's Constitutional Limitations, 8th Ed., vol. 1, 68; Olmstead v. United States, 277 U.S. 438, 48 S.Ct. 564, 72 L.Ed. 944, 66 A.L.R. 376; Hawes v. State of Georgia, 258 U.S. 1, 42 S.Ct. 204, 66 L.Ed. 431. From the foregoing, we conclude that there is no constitutional inhibition upon the courts of this state to admit into evidence telephonic communications obtained by the interception thereof. Neither does section 605 of the Federal Communications Act constitute a restraint upon the state courts. Rowan v. State, 175 Md. 547, 3 A.2d 753; McIntyre v. State, 190 Ga. 872, 11 S.E.2d 5, 10, 134 A.L.R. 813.

Even though section 605 applied to the interception of intrastate messages, it would not avail appellant here for the very good reason that there was no proof made of the lack of consent of the sender of any of the messages. In fact, his identity was never disclosed. If an invisible seeker of easy money by the bookmaking route would promote his forbidden venture by the telephone, he must pay the price of his intangibility when his message is intercepted by the agencies of the law. His position is not one to invoke unsolicited judicial protection.

(3) It is argued that the admission of the evidence received by the interception of telephonic communications by the police officers deprived appellant of privileges granted to him by the federal constitution. There is no authority in support of such argument. The act of intercepting telephonic orders directed to the apartment of appellant was completed at the moment of its receipt by the police. The act of divulging the contents of such orders to the court was a totally different act from that of taking the messages over the wires. If a right of appellant was violated either by the interception of the messages or by divulging the contents thereof, appellant may pursue his appropriate remedy against the officer. But he cannot relate his quarrel with the police as a defense to a long series of crimes which he would extend without limit.

The interception of messages might not have been in accordance with the noblest of ethical standards but at the same time it is a fact of social significance that the history of crimes and criminals has demonstrated that the successful detection and apprehension of defiant evildoers has been in a large measure made successful by the bold conduct of those in authority who either apprehended the criminal in the commission of his crime or made themselves ostensible parties to the conspiracies in order to complete the chain of evidence against the miscreants. Olmstead v. United States, supra. If deception may with approval be practiced by lawenforcing agencies upon men engaged in the pursuit of organized crime, surely the conduct of an officer who, upon invading the lair of an offender and in his presence seizes evidences of the suspected crimes, does not so poison the stream of justice as to defeat the residual decree. For those reasons the construction of section 605 as suggested by appellant would be a subversion of a universal practice which is approved by the highest legal and judicial authorities. Olmstead v. United States, supra. Even though the officer violates the rights of a suspect by making an unreasonable seizure, the use of the seized effects is no part of his offense against the constitutional immunity. People v. Wong Toy, 131 Cal.App. 455, 21 P.2d 465.

There is no principle of the fourteenth amendment to the federal Constitution violated by the reception in evidence of intercepted telephonic messages as forbidden by section 605. In the first place the section was primarily designed to regulate the behavior of those “receiving or assisting in receiving or transmitting * * * any interstate or foreign communication by wire or radio * * *.” The first and third clauses prohibit employees of communication agencies from divulging the contents of messages transmitted by the carrier. Clauses 2 and 4 of the section do not relate to the regulation of the carriers but are merely a rule of evidence for federal courts. Sablowsky v. United States, 3 Cir., 101 F.2d 183, 189. Following the Sablowsky decision, it was held that there is no fundamental difference between evidence obtained by tapping telephone wires or any other method of detection so long as the immunities of the federal Constitution are preserved. United States v. Polakoff, 2 Cir., 112 F.2d 888, 890, 134 A.L.R. 607. No such immunity was shown to have been violated because no sender of a message objected to the interception. Moreover, appellant at all times disclaimed all interest in the messages intercepted. If neither the sender nor the sendee objected, how can it be said that the act was violated? Such is not a privilege or immunity of national citizenship guaranteed by the fourteenth amendment against abridgement by the states.

(4) It is urged that the court committed prejudicial error in permitting officers to testify to the contents of the telephonic communications which came to the apartment of appellant at the time of his arrest. It has been repeatedly held that such communications are proper evidence in proof of the use of the occupied premises. People v. Joffe, 45 Cal.App.2d 233, 235, 113 P.2d 901; People v. Reifenstuhl, 37 Cal.App.2d 402, 99 P.2d 564.

The contention that the court erred in allowing the officers to explain the meaning of the words, signs and symbols found in the bulletin is without support. A person properly qualified may testify to the significance and meaning of the signs and symbols used in the business of bookmaking. People v. Cohen, 48 Cal.App.2d 459, 119 P.2d 995. But the testimony of the officers against appellant was not in explanation of signs or symbols but was the result of his comparison of the numbers and names of horses given him by the patrons of appellant over his own telephone, with those appearing in a current scratch sheet. From such comparison the officer found the horses and numbers mentioned in the telephonic conversations were found in the scratch sheet. The testimony of the officers in establishing from the scratch sheet that a horse race was being run on the day of appellant's arrest was harmless, if it was error, for the reason that the offense was complete when it was established that appellant occupied an apartment with paper and paraphernalia for the purpose of recording bets on horse races. Whether the race was run is immaterial. People v. Hinkle, 64 Cal.App. 375, 221 P. 693.

Order denying motion for new trial affirmed.

MOORE, Presiding Justice.

W. J. WOOD and McCOMB, JJ., concurred.

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