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


Cr. 2544.

Decided: April 20, 1949

Leo R. Friedman, of San Francisco, for appellant. Fred N. Howser, Atty. Gen., Clarence A. Linn, and B. Abbott Goldberg, Deputy Attys. Gen., for respondent.

Appellant appeals from a judgment of conviction of violation of section 337a, subd. 2 of the Penal Code after jury verdict finding appellant guilty as charged in Count I of the amended information, and from the order denying a new trial. The jury failed to reach a verdict as to appellant Cohn on Counts II and III charging violations of section 337a, subd. 4, and of conspiracy to violate these sections. The jury also failed to reach a verdict as to Cohn's codefendant Frank Low on any count of the information. Appellant's motion for new trial was denied and he was sentenced to San Quentin for the term prescribed by law.

Section 337a, subd. 2, Penal Code, under which appellant was convicted, prescribes a penalty of imprisonment in the county jail or state prison of not less than thirty days and not exceeding one year for any person keeping or occupying for any time whatever any premises with betting paraphernalia for the purpose of recording bets, purported bets, wagers or pools on any contest “or purported contest, of skill, speed or power of endurance of man or beast, or between men, beasts, or mechanical apparatus, or upon the result, or purported result, of any lot, chance, casualty, unknown or contingent event whatsoever; *.” This section applies to any person doing any one of the acts specified in subdivisions 1–6 inclusive, in a single instance as well as to one doing such acts as a business or occupation.

The main attack on the judgment is that the evidence is insufficient to support the verdict and for that reason we will give a detailed statement of the evidence following the fair and accurate outline in respondent's brief.

Defendant and appellant Paul Cohn, doing business as the Bouquet Cohn Cigar Company, was proprietor of the Bonanza Cafe, 141 Montgomery Street, San Francisco and of thirteen cigar stores in San Francisco for which he had obtained licenses to operate pin ball machines and off sale liquor licenses, and on which he paid personal property taxes. It was the theory of the State that defendant was using the premises at 141–145 Montgomery Street as a central clearing house for bets made at the various cigar stores operated by him.

The Steil Building, in which the events leading to defendant's arrest transpired, is a four story building facing Montgomery Street and bounded on the rear by Trinity Place. The Bonanza Cafe occupied the first floor; a suite of offices and a storeroom the second floor; a tailoring establishment the third; and a photostating business and reweaving service the fourth. The floors were connected by elevators and stairways. The State contended that the bookmaking activities took place in a suite of three small offices on the second floor near the rear of the building. There was also a large front office which was being renovated, and a storeroom containing supplies and beverages. In one of the small offices on this floor was a large table with three telephones, a wooden rack divided into partitions, each containing a pad of paper, and a smaller table with one telephone, wastebasket and two chairs.

On August 28, 1947, special investigator Hoy of the Attorney General's office and Sergeant Hanlon of the San Francisco police department visited the premises and went to the second floor by elevator where they encountered Cohn. They introduced themselves and told him they had information that bookmaking was being carried on there. Cohn gave an evasive answer but did not deny the accusation. The officers observed the three telephones on the large table and a fourth on a smaller table which was connected to a terminal box in the storeroom, also a fifth telephone located in another of the smaller offices and connected to one of the three telephones on the large table. Agent Hoy asked defendant if the telephones were his and he replied that they belonged to “Frank Peters” who was said to be in the advertising business but whose whereabouts defendant did not know. No bookmaking paraphernalia was observed on this visit. As the parties walked through the large front office agent Hoy made the remark. “I guess this is probably where your one hundred dollar bettors may be—will be sitting around.” The defendant laughed and replied, “There is more money in ‘Acey–Deucey’ bettors.”

On August 29, 1947, Hoy, Hanlon and Officer Keane of the San Francisco police department visited the premises. They found three telephones in the small office ringing busily. Officer Keane attempted to go up the stairway but found the second floor door locked. However defendant came up the stairway, unlocked the door and went in with the officer. Hoy was answering telephones. A voice on one call said, “This is 15.” When he said “O.K. Go ahead,” the telephone was hung up. Another call began, “This is 6.” When Hoy replied the party hung up. There were other similar calls. Hoy estimated that he answered twenty-five or thirty calls. The telephones rang continuously and sometimes all three rang simultaneously. “As fast as you could pick one [up] the other would be ringing. You couldn't answer them all at one time.” Sergeant Hanlon and Officer Keane had similar experiences. One party asked for Paul. Defendant took the call and the conversation consisted of “yes” and “no”. There was a long distance call for defendant on the telephone on the smaller table. Defendant took the call and there was a conversation apparently relating to racing at Del Mar, during which Cohn remarked, “This place is wired for sound.” At one time at the request of Sergeant Hanlon, the defendant took a call on one of the telephones on the larger table, said “hello” three or four times and then made a remark to the effect that “You have got them so scared they don't even recognize their master's voice.” The telephones kept ringing for about twenty minutes, becoming less frequent and finally ceasing. Hoy and Keane saw pads piled on the table but no writing other than the numbers at the bottom ranging from 1 to 16. They saw no papers relating to “Frank Peters” or to any advertising business, and no “Frank Peters” ever appeared in these proceedings. The officers paid a third visit on the afternoon of August 29, when they found the elevator padlocked. They contacted defendant who unlocked the stair door. There was no activity nor were any papers visible.

On the morning of September 5, 1947, Hoy and Officers Overstreet, Talbot and Duggins of the San Francisco police department visited the premises. Hoy and Overstreet entered the second floor, through a window by means of a ladder, while Talbot went through the Bonanza Cafe to the stairway at the rear. As Hoy and Overstreet entered they heard a buzzer, scuffling of feet and a voice saying, “It is the cops. It is the cops.” Talbot heard the sound of persons running. As Overstreet was entering he saw two men running; when he got in the men were gone. He unlocked the stairway door between the first and second floors and admitted Officer Talbot and Officer Duggins who was followed by defendant. On the third floor in the tailor shop, Giffen was found sitting on a sofa and Low was having a coat fitted which did not match his trousers, which was obviously too small for him, and on which the sleeves were three inches too short. Overstreet identified these men as the two he had seen running. Low admitted that he was a clerk for Cohn. Low took off the coat and said to the tailor, “This is all right after you shorten the sleeves.” The men returned with the officers to the second floor. Hoy had found the receivers of three telephones off the hooks. When he replaced them they began to ring. Hoy answered one phone and a voice said, “This is Bill, and can I have 5 across on 428?” Then when the party asked for Roy or Frank and found they were out he hung up. Officer Overstreet had two similar conversations. He testified, “The man's voice said, ‘This is Mission.’ I said, ‘O.K.’ He said, ‘168, 3 to win. 174, 10 to win.’ I repeated those numbers to him. I said, ‘O.K.’ and he hung up.” Relating a later call, “The man's voice in answer to my ‘Hello’, said, ‘Is this Roy?’ And I didn't say anything. He said, ‘Is this Roy?’ I said, ‘Yes.’ He said, ‘What is the password?’ I didn't say anything. I said, ‘O.K. go ahead.’ He said, ‘What is the password?’ I said, ‘Roy is downstairs for a moment.’ ‘Where is Frank?’ I said. ‘He went downstairs, also.’ I said, ‘They both left without telling me the password.’ He said. ‘Is it O.K.?’ I said, ‘If it wasn't O.K., I wouldn't be here.’ He said, ‘All right.’ He said, ‘Give me 5 to win on 184 field.’ I said, ‘O.K.’ Repeated it to him. I said, ‘O.K.’ and he hung up.” Giffen and Low refused to write their names for the officers following a warning nod of defendant.

Defendant took agent Hoy aside and the following conversation was detailed by the officer: “Mr. Cohn told me, he said, ‘I want to make one more plea to you.’ I told Cohn that it was all up to the Police Department from now on, that it was their case. Cohn said, ‘Well, anyway, it is worth a nice package to you.’ I said, ‘What do you mean?’ He said, ‘If you let those two fellows go in there and forget the whole thing, it will be worth a nice package to you.’ And he said, ‘You name it.’ ”

On the occasion of their visit on the morning of September 5, 1947, the officers found and seized in the three rear offices on the second floor of the Montgomery Street property the following paraphernalia: One large clock; Three telephones; One extension telephone and switch box; One telephone; One extension cord and bell; Slotted box containing fourteen pads of paper which contained records of bets placed on horse races; Copies of the Daily Bulletin and Sports Review; Run down sheets; 62 sheets of paper containing records of bets made on horse races; 1 sheet of paper, the same being the run-down sheet for September 5, 1947.

The recital of this evidence is a refutation of appellant's claim that there was insufficient evidence to support the verdict. It was said in People v. Abraham, 67 Cal.App.2d 425, 427, 154 P.2d 450, 451: “A violation of section 337a, subdivision 2, is complete when it is shown that the accused occupied a place with papers and paraphernalia for the purpose of recording bets on horse races.” Appellant's occupancy of the premises, the use of the telephones, and the presence of the racing sheets and betting paraphernalia all unite to complete the proof of violation of the statute. On this there is ample authority. People v. Warnick, 86 Cal.App.2d 900, 195 P.2d 552; People v. Kelley, 22 Cal.2d 169, 176, 137 P.2d 1; People v. Vertlieb, 22 Cal.2d 193, 196, 137 P.2d 437; People v. Ines, 90 Cal.App.2d 495, 203 P.2d 540.

Appellant argues that the court erred in admitting the testimony as to telephone calls and erred in instructing and refusing to instruct the jury as to its limited purpose. The evidence was admissible to prove, not the truth of what was said, but that the premises occupied by appellant were being illegally used for taking bets on horse races. People v. Vertlieb, supra; People v. Kelley, supra; People v. Klein, 71 Cal.App.2d 588, 163 P.2d 71; People v. Onofrio, 65 Cal.App.2d 584, 151 P.2d 158; People v. Barnhart, 66 Cal.App.2d 714, 153 P.2d 214; People v. Radley, 68 Cal.App.2d 607, 157 P.2d 426; People v. Warnick, supra. The trial court, at the request of appellant, so instructed the jury. There is no error here.

Appellant complains of the admission of testimony relating to long distance calls over the phones listed both to appellant and “Frank Peters.” The most that this testimony showed was that identical persons sent long distance calls over the telephone listed to appellant and over those listed to “Frank Peters.” There was a palpable inference, which appellant made no effort to meet, that “Frank Peters” was a mythical person and that the telephones listed to him were really owned and used by appellant and his employees for the purpose of receiving bets. The testimony was properly admitted.

Appellant complains of the admission of the testimony of an expert on bookmaking that certain pads and other paraphernalia seized at the premises represented materials used in making bets on horse racing. This point has been raised so frequently in these bookmaking cases, and so uniformly ruled adversely to appellants, that it is sufficient to cite People v. Newman, 24 Cal.2d 168, 174, 148 P.2d 4, 152 A.L.R. 365, where approval was given to People v. Hinkle, 64 Cal.App. 375, 378, 221 P. 693. See also People v. Bateman, 57 Cal.App.2d 585, 135 P.2d 192; People v. Green, 59 Cal.App.2d 219, 138 P.2d 399; People v. Onofrio, supra, and People v. Miller, 67 Cal.App.2d 382, 154 P.2d 435.

Appellant objected to the introduction of certain exhibits which were seized at the time of the arrest. Generally these exhibits were cards, sheets of paper, or pads showing bets made on horse races or results of races run. Many were shown to have been made by appellant's employees. All were in his “possession” at the time of the raid. There was no error here. People v. Davis, 65 Cal.App.2d 255, 155 P.2d 474, and cases cited above.

Appellant assigns as misconduct the statement of the district attorney: “You know your District Attorney has the power and does screen all the felony cases and he decides whether there is sufficient evidence to bring the case to trial or not. If there is not sufficient evidence the case never comes to court.” The statement was invited by a derogatory remark of counsel for appellant referring to the failure to make an arrest on the occasion of the first visit to the premises. The jury was instructed to disregard the statement, but without the instruction there was no error.

Misconduct is also assigned in the reference to the failure of the defendants to produce the witness “Frank Peters” and the inability of the very capable police department and staff of the district attorney's office to uncover him. The district attorney may have been overzealous in his praise, but his reference to the failure of the defense to produce the witness was unobjectionable. The evidence showed that the building was owned by appellant's wife, that her books failed to show a lease to “Frank Peters”, that his name appeared only on the listed telephones which were used by appellant and his employees. If such a person as “Frank Peters” existed appellant could either have produced him or shown that he was unable to do so. As the case stood at the time the statement of the district attorney was made the jury must have known that “Frank Peters” was a myth and the statement of the district attorney had no effect on its conclusion.

Finally it is argued that the trial court erred when it asked the jury how it stood numerically and when told “11–1” on one count, and again, “On one we have twelve” instructed the jury to return for further deliberation. The jury then returned with a verdict of guilty as to Cohn on the first count, and failed to reach a verdict as to him on the second and third counts. It also failed to reach a verdict as to Low on any of the counts. Whether an earlier failure to agree concerned both defendants or Low alone does not appear because there is uncertainty in the numbers used by the forewoman—whether she referred to the parties or to the three counts of the information. All parties were apparently content to risk a chance on the further deliberations of the jury and no objection was made to the procedure. The appellant now argues that this was coercive. The point is not well taken. People v. Curtis, 36 Cal.App.2d 306, 325, 98 P.2d 228, and cases cited.

The judgment and order are affirmed.

On Petition for Rehearing

Rehearing granted; NOURSE, P.J., dissenting.

I dissent from the order since the petition is filed for the sole purpose of keeping the appellant at liberty on bail pending a frivolous appeal.

NOURSE, Presiding Justice.

GOODELL and DOOLING, JJ., concur.

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