PEOPLE v. ALLEN

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District Court of Appeal, Second District, Division 3, California.

PEOPLE v. ALLEN.

Cr. 3559.

Decided: August 14, 1942

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

Defendant was charged by information in three counts with violation of section 337a of the Penal Code as follows: Count I, violation of subdivision 2 in that he kept and occupied a storeroom with books, papers and paraphernalia for the purpose of recording bets upon horse races; Count II, violation of subdivision 3 in that he received and held money bet upon horse races; and Count III, violation of subdivision 4 in that he recorded bets upon horse races. The trial was by the court without a jury and defendant was convicted upon Count I and acquitted upon Counts II and III. His motion for a new trial was denied and judgment was pronounced sentencing him to the county jail for six months; probation was granted and execution of judgment was suspended for three years upon condition that he pay a fine of $200.

Appellant contends that the evidence was insufficient to sustain the judgment, and that the court erred in its rulings on the admissibility of evidence.

By stipulation the case was submitted upon the transcript of the proceedings at the preliminary hearing. That transcript shows that the only witness was a police officer called by the prosecution, and that the defendant did not testify or call any witnesses on his behalf. When the trial judge asked defendant's counsel, after having read the transcript, whether there was anything further as to Count I, it was stipulated that the defendant “would deny it.”

The officer testified that on June 19, 1941, at about 2 p. m., he entered a store which had cigars, cigarettes, stationery and soda water for sale, and in which there was also a newstand and a miniature film business; that he saw the defendant standing on the inside of the cigar counter; that he saw one Cosgrove standing on the outside of the counter opposite defendant next to the cash register; that Cosgrove laid some money on the counter and, as the officer came by him, Cosgrove grabbed a piece of paper from the counter and tore it in half; that at the same time, defendant grabbed two pieces of paper and shoved them into his coat pocket; that the money, $2, was left on the counter; that he placed defendant and Cosgrove under arrest and called his associate officer who was in a car a short distance from the store; that there was an open scratch sheet dated June 19, 1941, on the counter in front of appellant and there were other scratch sheets, on the counter, stapled closed; that there were two blank pads on the counter, one by the cash register and the other farther down, which were similar in shape and size to the papers taken from defendant's pocket and to some of the papers in the groups of papers which were removed from the safe; that he took, as evidence, the two pieces of paper which defendant had put in his pocket, the torn pieces of paper which Cosgrove attempted to destroy, the open scratch sheet, the two one–dollar bills and the two blank pads which were on the counter; that he saw a piece of paper in a locked safe which was in the room and, by means of a hook made from a paper clip, he removed the paper from the safe and then he forced the safe open with a chisel and hammer and removed therefrom $174, a “group” of papers and four “packages” of papers. The articles taken by the officer, except the money from the safe, were received in evidence.

He testified further that he had been a member of the vice–squad of the police department of Los Angeles for four and a half years, had arrested persons charged with bookmaking, had testified in court as to the investigations pursuant to the arrests and was familiar with the manner in which bookmaking was customarily conducted in Los Angeles County; that a scratch sheet contains the names, weather conditions at various race tracks, the post time and distance of horse races, the numbers and names of race horses, the jockeys' names, the track odds, the handicapper's selections and the weight carried by each horse; that the open scratch sheet, which was upon the counter, was such a scratch sheet, was known as the “National Scratch Sheet” and was sold in almost every newstand in Los Angeles; that there was a common practice among bookmakers for recording bets and the two pieces of paper which were taken from defendant's pocket conform with that practice and were commonly known as betting markers; that upon one of such papers there were numbers and words as follows: “714, Testa, to 751, West Acres,” and under those numbers and words there were the words “Win” and “Place”, and after the word “Win” there was the number “1” and under the word “Place” there was the number “1”, and after these was the letter “X”, and under all of the numbers and words there was a line under which were the initials “C. J.”; that the symbols on that paper mean a two–horse parlay, which is a bet on two horses and if the bet on the first horse is won, the proceeds therefrom are then placed on the second horse and, if that horse wins, the better collects the total amount the second horse pays; that the second paper taken from defendant was in the same form as the other one taken from defendant, except with different numbers and names of horses, and it was also a two–horse parlay; that the names of the horses on the betting markers taken from defendant were on the National Scratch Sheet, dated June 19, 1941, which was open on the counter in front of appellant; that the paper taken from the safe by means of the hook was also a betting marker, bearing a number “711” which indicated the number of the horse, a letter “X” which indicated there was no bet in the win position, and the figure “2” which indicated there was a $2 bet on the horse to “place”, or run second, but that the numbers and letters on that marker were not on the open scratch sheet which was upon the counter; that another paper, with the names “Little Ruler” and “Wilderbust” thereon, which was among the papers taken from the safe, was also a betting marker in the same form as those taken from defendant, and the names thereon were on the open scratch sheet; that the piece of paper torn by and taken from Cosgrove, bearing the terms “Mad Crusader” and “Southern Belle,” was also a betting marker in the same form as those taken from defendant, and the names thereon were on the open scratch sheet; that in a conversation when Cosgrove and the defendant were present, Cosgrove said, in response to a question by the officer, “Allen is my banker, I owed him $2.00 and that's why I put it (the money) down in front of him,” and in response to a question by the officer, concerning the reason he tore the betting marker, Cosgrove said, “I had to tear it up, I had to tear that bet up.”; that defendant said that was his (defendant's) place of business and “I run it,”; that the officer asked defendant how the bet happened to get into the safe and he said “That bet you took out of the safe must be something I put in there a long time ago.”; that the defendant said he never had a key to the safe, that he had moved there about two years ago and the safe had never been opened; that later the officer asked defendant “* * * how that stuff happened to be in there (the safe) for recent dates,” and he said, “A bookmaker leaves this stuff every night,” and that he did not know the bookmaker's name; that the officer was there from 2 p. m. until 4:15 p. m., during which time there were several incoming telephone calls, and several persons who called would not give any conversation.

Cosgrove was charged, based upon the circumstances above related, with making a bet on a horse race. He was tried jointly with defendant and was acquitted.

Appellant argues that the conviction cannot be sustained because it was not shown (1) that appellant recorded a bet, (2) that there was a horse race or purported horse race on June 19, 1941, or (3) that the premises were used for the purpose of recording bets.

Subdivision 2 of section 337a of the Penal Code provides that every person, “Who, whether for gain, * * * gratuitously, or otherwise, keeps or occupies, for any period of time whatsoever, any room, * * building, * * * place, * * * or inclosure, of any kind, or any part thereof with * * *, paper or papers, apparatus, * * * or paraphernalia, for the purpose of recording or registering any bet or bets, or any purported bet or bets, * * * upon the result or purported result, of any * * * contest, * * * of skill, speed or power of endurance of * * * beast, * * *” is punishable by imprisonment. It is provided further in said section 337a that, “This section shall apply not only to persons who may commit any of the acts designated in * * * this section, as a business or occupation, but shall also apply to every person * * * who may do in a single instance any one of the acts specified * * *.”

It is not a necessary element of the offense denounced in subdivision 2 of said section 337a that a bet be recorded. People v. Manning, 1940, 37 Cal.App.2d 41, 43, 98 P.2d 748.

In order to prove that said subdivision 2 was violated on a particular day it is not a requirement that it be established there was a race or purported race on that day. People v. Sutherland, 1922, 59 Cal.App. 462, 463, 210 P. 965; People v. Hinkle, 1923, 64 Cal.App. 375, 380, 221 P. 693.

It is the keeping or occupancy of a room or place with paper, papers or paraphernalia for the purpose of recording bets on horse races, among other kinds of contests, that is denounced by subdivision 2 of said section 337a. People v. Manning, supra, 1940, 37 Cal.App.2d 41, 43, 98 P.2d 748; People v. Hinkle, supra, 1923, 64 Cal.App. 375, 380, 221 P. 693.

Although it was incumbent upon the prosecution to prove that the place was kept or occupied for the purpose set forth in said subdivision 2 it was not necessary to make this proof by direct evidence. People v. Tuttle, 1938, 27 Cal.App.2d 647, 649, 81 P.2d 571. The purpose in keeping or occupying the place could be determined from the surrounding circumstances shown in evidence. People v. Tepper, 1940, 36 Cal.App.2d 525, 527, 97 P.2d 1002.

The appellant kept and occupied a storeroom. When the officer approached the counter therein, behind which appellant was standing, appellant grabbed two betting markers from the counter and shoved them into his (appellant's) pocket. On the counter, at the place where appellant was standing, there was an open scratch sheet of that date which included the same names of horses as those names on the betting markers which appellant grabbed. Also at that place on the counter there were two one–dollar bills and a blank pad similar in shape and size to the betting markers. A group of papers taken from the locked safe in the room included some papers which were similar in size to the betting markers grabbed by appellant and to the papers in the blank pad on the counter. One of the papers from this group, which was described particularly, was a betting marker and the horse's name thereon was also on the scratch sheet that was on the counter. The paper taken from the safe by means of a hook, before the safe was opened, was a betting marker. In referring to the business defendant said it was his and, “I run it.” The safe was in defendant's place of business. In the safe there were betting markers upon which were names of horses corresponding with names of horses on the scratch sheet in front of defendant. He made conflicting statements relative to the opening of the safe. One statement was that he had been there two years and “the safe had never been opened.” Another statement was that the bet which was taken out of the safe must be something “I put in there a long time ago.” A later statement was (referring to the “stuff” in the safe) “A bookmaker leaves this stuff every night.” Several persons who called on the telephone would not give any conversation. Defendant made no response when Cosgrove said, “Allen is my banker, I owed him $2.00 and that's why I put it down in front of him,” and “I had to tear that bet up.”

In the case of People v. Manning, supra, 1940, 37 Cal.App.2d 41, at page 43, 98 P.2d 748, at page 749, it was said, “It is not the actual making of the bets, but the occupancy of a room with a book or books, paper or papers, etc., for the purpose of recording such bets, which constitutes the offense denounced by subdivision 2 of section 337a of the Penal Code.”

The circumstances were sufficient to warrant the trial court in finding that one of the purposes of defendant in occupying the room was to register bets on horse races. There was direct evidence that appellant, at the time of his arrest, attempted to conceal on his person two papers of the kind and form customarily used in recording bets on horse races. Also there was direct evidence that another paper, known as a scratch sheet, was open on the counter immediately in front of appellant.

The actual possession of such papers by appellant, when considered in the light of appellant's conduct in attempting to conceal them at the time of his arrest, constitutes a major element of the offense charged. People v. Hatfield, 1926, 77 Cal.App. 212, 217, 246 P. 95; People v. Reifenstuhl, 1940, 37 Cal.App.2d 402, 404, 99 P.2d 564.

In this case, as stated in People v. Hinkle, 1923, 64 Cal.App. 375, at page 380, 221 P. 693, at page 695, (which involved a similar charge, a betting marker and similar proof), “It is hardly to be supposed that one innocently in possession of such a paper would seek to conceal it from the police officers, as defendant did.”

In addition to the direct evidence, the circumstantial evidence pointed convincingly to the correctness of the conclusion of the trial court. As above shown, such circumstantial evidence included that relating to the ownership and control of the safe, the groups of papers in it which included betting markers and papers referred to by appellant as “stuff” put there by a bookmaker, the contradictory statements by appellant about opening or not opening the safe, the blank pads similar to the betting markers, and the several incoming telephone calls in which there was no conversation.

The police officer, in the performance of his duties over a period of several years, had become familiar with the papers, books and paraphernalia ordinarily used by bookmakers. He was qualified to testify as to the custom or manner in which bookmakers operated and it was proper to permit the officer to explain the nature and character of the papers taken from appellant and his place of business and to state his opinion with reference to the significance attaching to the letters and figures which appeared thereon. People v. Hinkle, supra, 1923, 64 Cal.App. 375, 379, 221 P. 693.

The testimony of the police officer was not contradicted by the defendant except insofar as the stipulation that defendant “would deny it” may be regarded as a contradiction. It is not clear whether it was intended by the stipulation that defendant would deny all of the testimony of the officer or only a part of it. If it was intended by such stipulation that defendant would deny all of the testimony, including such testimony as that defendant was present, it would indicate, under the circumstances here presented, that the trial court would have been justified in disregarding the whole of his testimony. If it was intended that he would deny only a part of the testimony, that part cannot be ascertained and upon the record thus presented, if such denial relates only to an undesignated part of the testimony, it must be regarded that the testimony of the officer was uncontradicted.

The weight to be accorded the evidence in this case was a question for the trial judge. It was his function to determine what facts were established by the evidence. In the case of People v. Tedesco, 1934, 1 Cal.2d 211, at page 219, 34 P.2d 467, at page 470, it was said, “* * * before the verdict * * * which has been approved by the trial court can be set aside on appeal upon the ground of the insufficiency of the evidence * * *, it must be made clearly to appear that upon no hypothesis whatever is there substantial evidence sufficient to support the conclusion of the trial court.” Further it was said in that case on the same page (1 Cal.2d at page 219, 34 P.2d at page 470) that the reviewing court “* * * may disturb such a finding only when we can say, as a matter of law, that there was no evidence to support it.”

If the circumstances shown in evidence reasonably justify the finding of guilt by the trial court, a reviewing court is not warranted in disturbing the finding even though those circumstances also might be reconciled reasonably with the innocence of defendant. People v. Newland, 1940, 15 Cal.2d 678, 104 P.2d 778.

Appellant asserts that the trial court erred in receiving in evidence a paper referred to as an Ajax Turf Bulletin scratch sheet which was not found in appellant's place of business but was obtained elsewhere. The case was submitted to the trial court, as above stated, upon the transcript of the preliminary hearing. An objection was made at the preliminary hearing to the offer of that bulletin in evidence but such an objection was not made at the trial. “A party cannot on appeal rely on errors * * * whose consequences could have been avoided by timely protest to the trial court, when he remains silent at the trial.” People v. Cohen, 1931, 113 Cal.App. 260, 263, 298 P. 114, 115. However, irrespective of such bulletin, there was sufficient evidence to sustain the finding of the trial court and no prejudicial error resulted by reason of such bulletin even if the trial court considered that it was in evidence.

The judgment and the order denying the motion for a new trial are affirmed.

PARKER WOOD, Justice.

SCHAUER, P. J., and SHINN, J., concur.