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District Court of Appeal, Second District, Division 1, California.


Cr. 3582.

Decided: October 01, 1942

Morris Lavine, of Los Angeles, for appellants. Earl Warren, Atty. Gen., and Eugene M. Elson, Deputy Atty. Gen., for respondent.

Appellants were charged by an information with keeping and occupying a room in an apartment house in the city of Los Angeles with paraphernalia used for the purpose of recording and registering bets on horse races contrary to subdivision 2, section 337a of the Penal Code. The trial court, sitting without a jury, found appellants guilty as charged, and denied their motion for a new trial. The proceedings were suspended, appellants were granted probation, whereupon they appealed from the order denying their motion for a new trial, relying upon the following grounds: (1) Insufficiency of the evidence to sustain the conviction and lack of substantial evidence to establish the corpus delicti; (2) error of the court in admitting evidence received over the telephone in violation of the Federal Communications Act of 1934, section 605, 47 U.S.C.A. § 605.

On May 23, 1941, Police Officers Laurence W. Cork and W. R. Morgan went to an apartment house in the city of Los Angeles to make “an investigation” of that particular place, and when they entered a bedroom on the second floor thereof they found appellants. The room contained a bed, two chairs and a table, and on the east side was an open window. On the table were two telephones and some blank betting markers, and on the bed was a publication known as the “American Turf Authority Racing Form”. The telephones immediately began to ring and Officer Cork asked appellants for betting markers and scratch sheets, saying, “I don't want to tear this house up, tell me where are the markers and the scratch sheets.” Appellant Berkowitz replied: “I will get them. * * * I threw them out the window on the garage roof.” Officer Cork left the room, went downstairs and picked up some betting markers from the ground, crawled up a clothesline pole and found some more betting markers on the garage roof, some of which contained marks and notations.

Said Officer Cork, who qualified as an expert, having handled bookmaking matters for the police department for a period of ten months, testified that the racing form (People's Exhibit 2) found in the bedroom was one used by bookmakers in carrying on their business, but on voir dire admitted it was used by the public generally, as well as by bookmakers; that he compared the betting markers found by the officers with said racing form, but owing to the fact that the racing form contained no numbers for the horses and the betting markers had numbers but no names for the horses, it was not possible for him to determine which horse represented by a marker was the one shown on the racing form. Said witness then compared the said betting markers (People's Exhibit 1) with information contained in “American Daily Handicap Scratch Sheet” (People's Exhibit 3), which it was admitted by the prosecution was not found in appellants' possession) and stated that such comparison disclosed that certain names appearing on the betting markers also appeared on said scratch sheet, and that these names represented various horses running races at various tracks throughout the country.

Officer Cork answered the telephones, which were continuously ringing, and testified that: “At 4:42 P. M., Walnut 3734 * * * rang, and a voice said: ‘Here is the winner, 32, 28, 37, 19.60, 8.85, 4.40, 9.40, 4.60 and 4.40.’ At 4:45 P. M. the telephone rang and the voice said, ‘Jack, who won the seventh race?’ I replied, ‘Not in yet’. And the party said, ‘Is this Jack?’ I said, ‘No, it isn't.’ That was on Whitney 1533. * * * At 4:46 P. M., Whitney 1533 rang, and the voice said, ‘Sam, 751 won across.’ At 4:47, Walnut * * * 3734, the party's voice said, ‘H. R. is it too late for the eighth?’ * * * No, I will take it. The party said, ‘742, one to win.’ At 5:03 the telephone rang and the voice said, ‘Is this Jack?’ And I said, ‘No, Sam.’ And he said, ‘Where is Jack?’ I said, ‘Gone home early.’ The voice said, ‘O. K., thanks Sam.’ ” The appellants' names were “Jack” and “Sam.”

In connection with their first point, appellants insist that the “corpus delicti of the offense defined in subdivision 2 of Penal Code, section 337a, is not established, even prima facie, by evidence showing that the accused were tenants of a bedroom and that officers found in said room two telephones on a table and several blank papers which they designated as ‘betting markers'.” It is also urged, as hereinbefore mentioned, that the court erred in permitting the telephonic messages to be received in evidence for the reason that it was violative of section 605 of the Federal Communications Act of 1934. This precise point is an issue in People v. Kelley, 50 Cal.App.2d –––, 122 P.2d 655, in which case the Supreme Court granted a hearing on March 27, 1942, and it is now pending before that court.

In answer to appellants' brief, respondent urges that: “Exclusive of the evidence pertaining to the telephone messages, we have these incriminating circumstances which tend to establish the corpus delicti: 1. Two telephones in a one–room apartment; 2. Blank betting markers and a racing form in the apartment; 3. Filled–in betting markers outside the window, which (according to Officer Cork's testimony) were thrown there by one of the appellants; 4. Marks and notations on the betting markers identical with those commonly used by bookmakers;” 5. The frequency of the calls coming in on the two telephones within a short period of time; and “6. Testimony of the landlady that one of the appellants came to the apartment every day and stayed all day, and that a lot of telephone calls were made.”

Subdivision 2 of section 337a of the Penal Code provides that anyone who, “whether for gain, hire, reward, or gratuitously, or otherwise, keeps or occupies, for any period of time whatsoever, any * * * place * * * or any part thereof with a book or books, paper or papers, apparatus, device or paraphernalia, for the purpose of recording or registering any bet or bets * * * upon the result * * * of any trial * * * or contest * * * Is punishable * * *.”

The evidence adduced at the trial of the instant prosecution established conclusively that appellants occupied an apartment containing: two telephones with different numbers, and racing paraphernalia used by bookmakers. In the case of People v. Manning, 37 Cal.App.2d 41, 43, 98 P.2d 748, 749, a prosecution under the same section of the Penal Code, it was declared: “The offense with which appellant was charged is complete when it is shown that the accused occupied a room or enclosure with papers, etc., for the purpose of recording a bet or bets on the result or purported result of any horse race or purported horse race.

“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.”

Eliminating from consideration the testimony regarding the messages received over the two telephones by the officers, this court is of the opinion that there still remains in the record sufficient evidence to establish the corpus delicti and appellants' connection with it, and that therefore the order appealed from is necessarily supported by such evidence.

For the reasons stated, the order denying motion for a new trial is affirmed.

YORK, Presiding Justice.

DORAN and WHITE, JJ., concurred.

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