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


Cr. 3285

Decided: January 11, 1940

Martin S. Ryan, of Los Angeles, for appellant. Earl Warren, Atty. Gen., and L.G. Campbell, Deputy Atty. Gen., for respondent.

Defendant was convicted of violating subdivision 2 of section 337a of the Penal Code, the specific charge being that he occupied certain premises for the purpose of recording wagers on horse races. The case was tried before the court without a jury. Defendant prosecutes this appeal from the judgment of conviction.

Defendant's contention that the evidence is insufficient to justify the conviction must be sustained. Officer Benton testified that at about 3:30 p.m. on June 15, 1939, he went with officer McCoy to the premises at 3167 Cahuenga boulevard in the city of Los Angeles. The premises are not clearly described but it appears that on the ground floor there is a “rooming house” with bedrooms, living room, kitchen, bath and lavatory, where a number of men were living. In response to the question, “Is there a proprietor at that rooming house?” one of the officers testified: “There is, but I didn't know the man and I didn't see him.” Several men were on the premises drinking liquor when the officers arrived. The officers saw defendant and one Miller come from the lavatory, through a hallway and into a living room. Defendant left the premises. Until that time he had not been taken into custody or placed under arrest. The officers and Miller went down a hallway to the rear and after climbing a ladder which was “behind the lavatory down this dark hallway” they entered a room where there were five telephones, a counter and chairs, betting markers and run-down sheets. Miller was arrested on the premises but the charge against him was dismissed at the preliminary examination.

Defendant was arrested at about 6:45 p.m. on the same day and at the same premises. As they drove up the officers saw defendant enter the front door and shortly thereafter he was arrested as he came out of the lavatory. He was searched and two A B C betting markers were found on his person. Certain notations had been made on the betting markers but it was not shown in whose handwriting the notations had been made. Upon his arrest defendant denied that he knew anything regarding the operation of a bookmaking establishment on the premises. He also denied that he had been on the premises in the afternoon of that day. A number of keys were found on the person of defendant, who, when asked if the keys would fit any of the doors, replied that “he didn't know, they might”. One of the officers testified that one of the keys would fit the front door of the rooming house. The sum of $52 in currency was also found on defendant. Defendant told the officers that he had come to the premises to see friends.

It may be conceded that the prosecution established that the room above the lavatory was kept for the purpose of recording illegal wagers but it was incumbent upon the prosecution to prove beyond a reasonable doubt that the defendant kept or occupied the room in question for this purpose. The circumstances that defendant was seen coming from the lavatory and that he had upon his person the sum of $52 are not so unusual as to be regarded as incriminatory. His presence on the ground floor where a number of men resided cannot be regarded as proof that he was maintaining a gambling room above, especially when his explanation that he had come to see friends on the lower floor is taken into account. The possession of the key which was shown to fit the front door of the lower floor and which defendant admitted upon his arrest might open one of the doors cannot be regarded as of convincing probative force. The prosecution must rely, therefore, mainly upon the circumstances that he had on his person certain betting markers at the time of his arrest. This is doubtless a suspicious circumstance but either standing alone or considered in connection with the other circumstances shown in evidence it is not sufficient to establish beyond a reasonable doubt that defendant kept or occupied the gambling room on the upper floor. For aught that appears in the evidence, if it indicates guilt of any crime, it might as well be argued that the possession of the markers would arouse suspicion of guilt of the crime of receiving a sum to be wagered, an offense defined in subdivision 3, of section 337a, of the Penal Code, and not the offense of which defendant was convicted. The evidence against defendant is entirely circumstantial and when the evidence is of such a character it must be not only consistent with the hypothesis of guilt, but inconsistent with any other rational hypothesis. Where the circumstances relied on as incriminatory are equally compatible with innocence as with guilt there is a failure of proof necessary to sustain a conviction. People v. Staples, 149 Cal. 405, 86 P. 886; People v. Lamson, 1 Cal.2d 648, 36 P.2d 361. We cannot hold that the evidence establishes the guilt of defendant with such certainty as to justify his conviction.

In his brief the attorney-general refers to certain answers given by defendant to questions propounded by the court at the time of the hearing of his application for probation. He refers particularly to defendant's statement then made that he had formerly worked on the premises in question. The proceedings at such hearing may not be used to supply the proof necessary to sustain a judgment of conviction. It might be added that nothing occurred at the hearing of defendant's application for probation to suggest a decision other than the one at which we have arrived.

The case was presented to the superior court on the transcript of the testimony received at the preliminary examination, an unsatisfactory practice which was recently condemned by one of the other divisions of this court. People v. Fisk, 32 Cal.App.2d 26, 89 P.2d 142. From the testimony of one of the officers it appears that no effort was made to reach the proprietor of the rooming house. Apparently no watch was kept on the room containing the gambling paraphernalia to discover the identity of the persons conducting the illegal operations. No proof was presented to establish the name of the lessee of the room or the owner of the furniture being there used. Nor was there proof concerning the party who installed or paid for the telephones. The District Court of Appeal has recently been compelled to reverse other convictions of violating section 337a of the Penal Code because of the failure of the authorities to present sufficient evidence. People v. Yoder, Cal.App., 95 P.2d 470; People v. Rabalete, 28 Cal.App.2d 480, 82 P.2d 707; People v. Fisk, supra. Infractions of this statute should be prosecuted with the same diligence as is exercised in the prosecution of other crimes.

The judgment is reversed and the cause remanded for a new trial.

I dissent. However, I must concur with the gentle admonition that a proper adjudication of such cases would be facilitated by the exercise of a bit more of diligence on the part of the law-enforcing agencies in gathering evidence before trial. Notwithstanding the shortcomings of the evidence, however, I think the judgment should stand.

The majority opinion states that “where the circumstances relied on as incriminatory are equally compatible with innocence as with guilt there is a failure of proof necessary to sustain a conviction”, citing People v. Staples, etc. The Staples case has, for more than three decades, been the refuge and the shield of persons convicted on circumstantial evidence. Seldom is it applicable. In predicating judgments upon the language there used, a court should ever keep in mind that, in the Staples case, the corpus delicti was never established. The significance of that decision lies in its iteration of the ancient principle that unless a crime be first proved, it is folly to undertake to establish the defendant's participation therein.

To justify the verdict of a jury in convicting a person of crime, it is necessary only that proof be made (1) that the crime has been committed, and (2) that the criminal agency was the accused. If the verdict be approved by the trial judge, it arrives at the appellate court with such a degree of sanctity as to require a high degree of caution in considering a reversal. The trial court is the constitutional tribunal for determining the force and value of facts presented in proving crime. The appellate court has only one function in dealing with the record of a criminal trial where the insufficiency of the evidence is claimed and that is to decide whether sufficient facts could not have been found by the jury to warrant the inference of guilt. This is, of course, equally true where the facts are originally determined by the trial judge alone. Before his decision can be set aside “it must be made clearly to appear that upon no hypothesis whatever is there sufficient substantial evidence to support the conclusion reached in the court below”. People v. Tom Woo, 181 Cal. 315, 184 P. 389, 393. This is quite a different doctrine from that announced in the Staples and Lamson cases and the difference creates a wide gulf between the holding of the majority opinion and that which, I opine, should prevail here.

In the Woo case, there was only circumstantial evidence with inconsistent statements of the defendants. Convictions of murder were affirmed. Long years after Dr. Staples was acquitted by the Supreme Court, Mr. Justice Houser, in adverting to the Staples case, observed: “in practically every criminal prosecution that is dependent for its success upon circumstantial evidence each fact adduced is not only susceptible of a ‘rational hypothesis' of innocence of the accused, but also is possibly as compatible with his innocence as it is with his guilt”. If this were to justify the trial court in declaring a failure of proof, he argued, then most prosecutions of secretly committed crimes would fail because even the corpus delicti as well as the criminal participation must be established wholly by circumstances. “The right to draw proper inferences from the evidence submitted is the function of the jury; and, as long as its conclusion does no violence to reason, an appellate court is not permitted to substitute its finding of the ultimate fact for that reached by the constitutional as well as the statutory arbiter thereof. On the ground here urged by the appellants an interference by an appellate court with a verdict of guilt of the accused is warranted only when the evidence, rightly considered, unmistakably leads to an inference of innocence.” People v. Patello, 125 Cal.App. 480, 13 P.2d 1068, 1069, 1070.

Where circumstances reasonably justify an inference of guilt, the fact that an inference of innocence may also be reasonably drawn therefrom does not present a question of law for review by the appellate court. People v. Martinez, 20 Cal.App. 343, 128 P. 952. Moreover, the court cannot disturb a verdict unless there is no evidence to submit or where the evidence relied upon is so improbable or false as to be credible. People v. Willard, 150 Cal. 543, 89 P. 124.

In the Helt case, People v. Helt, 100 Cal.App. 279, 279 P. 1046, the corpus delicti, to-wit, maintaining a whiskey distillery, was established. The facts connecting defendant with the crime were circumstantial only. He drove to the rear of the house; he carried three keys, one of which fitted the garage lock, and one unlocked the front door of the house; when he answered the telephone he was saluted by his first name. His conviction was affirmed.

In the Borrego case, People v. Borrego, 211 Cal. 759, 297 P. 17, 19, the evidence that convicted Borrego was (1) the three-jointed piece of pipe, and (2) twenty-five gallons of gasoline taken from his car. “Circumstantial evidence need not,” said the court, “in order to justify the inference of legal guilt, consist of inculpatory facts which are absolutely and to the point of demonstration incompatible with innocence. ‘A conviction in the minds of the jurors to a moral certainty and beyond a reasonable doubt, arising from the evidence of the defendant's guilt, is sufficient.’ ”

Now to the facts of the instant case. Here we have definitely established the corpus delicti of the crime of maintaining a room for the registering of bets on horse races. The house at 3167 Cahuenga avenue, on June 15, 1939, stood in the suburbs of the city of Los Angeles, some twelve miles from defendant's home and fifteen miles from the metropolitan center. It was a “u-shaped” court with stores and apartments. Each apartment consisted of a living room, two bedrooms, a kitchen and lavatory. The apartment visited by the officers had a rear hall exit. When they entered said rear hallway at 3:30 o'clock p.m., defendant and one Miller were headed toward the living room at the front. The officers ordered them to return to the rear whence they had just departed. Defendant escaped and fled from the premises. Without resistance or assistance the officers entered the lavatory and climbed a ladder attached to the wall to the bookie room. Having completed this task, they lay in wait for defendant to return. This occurred at 7 o'clock p.m. on the same day. Defendant walked through the living room, back through the bedroom where five drunks sat intoxicated, and on into said lavatory. On his exit therefrom he was arrested and searched. He carried on his person $52 in currency, two A B C betting markers and some keys. On being quizzed by the officers, he declared that (1) he did not know whether any of the keys fitted any of the doors; (2) he was not there in the afternoon at any hour; (3) he was there to pay a social call; (4) he had a daughter graduating that night and would like to be excused to attend her graduation.

But the officers demonstrated that one of the keys fitted the front door, which put him in constructive possession of the apartment and the bookie-room, which was accessible by anyone who had gained entrance into the living room. They identified him as the person who had fled from them at 3:30 o'clock p.m. He named no friend on whom he had called although requested to do so. He named neither the school nor its location at which his daughter was to graduate. He offered no rational explanation for his presence there. He was not there to sleep; his home was distant only a fifteen minute drive. He was not there to shop; there were numerous shopping districts between this bookie house and his home. Arrested on the premises at 7 o'clock in the evening, after one flight from the same place on the same day; in such a situation with said key, currency and A B C betting markers in his pocket; entering said apartment without let or hindrance; walking with familiarity through the bedroom, among the drunks, into the lavatory and out again; denying his prior arrest or presence; offering no explanation of his having $52 on his person at that place and at that hour—he stood at the bar with every essential mark of guilt, if the trial judge believed beyond a reasonable doubt that he was one of the keepers of the bookie-room. These facts might well be consistent with innocence but they are also consistent with guilt. That being the verdict and judgment of the trial judge, it should not be disturbed but the judgment should be affirmed.

WOOD, Justice.

I concur: McCOMB, J.