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


Cr. 2643.

Decided: June 26, 1950

J. Emmet Chapman, Frederick C. Dewar, San Francisco, for defendant and appellant Steccone. Golden & Fratis, Oakland, Julius M. Keller, San Francisco, of counsel, for defendant and appellant Makris. Fred N. Howser, Atty. Gen., Clarence A. Linn, Dep. Atty.Gen., for respondent.

John P. Steccone and Peter Makris were charged under subdivision 1 of section 182 of the Penal Code with conspiring to violate subdivision 2 of section 337a in that they conspired to keep and maintain rooms and places at 1313 Park Street and 136 Santa Clara Avenue, in the City of Alameda, with books, papers, device and paraphernalia, for the purpose of recording and registering bets upon horse races. Six overt acts were set forth in the information. They were tried and the jury returned a verdict finding each defendant guilty as charged. Eachd made a motion for a new trial, but said motions were denied. Probation was applied for and each defendant was granted probation, among the conditions being that Steccone should serve six months in the county jail, and Makris three months.

Each defendant has appealed from the judgment and from the order denying his motion for a new trial. No judgment having been rendered because of the suspension of the judgments by the orders granting probation, the purported appeals from the judgments must be dismissed. People v. Labrabera, 89 Cal.App.2d 639, 201 P.2d 584. We may, however, consider the points raised by appellants on their appeals from the order denying their motions for a new trial.

Appellants were represented by separate counsel at the trial and are represented by separate counsel upon this appeal, each appellant submitting separate briefs. Each argues the insufficiency of the evidence to support the verdict and that evidence against him was improperly admitted. Appellant Steccone in addition alleges error in the refusal of the court to give certain instructions offered by him.

Before discussing the specific contentions of appellants we shall briefly summarized the evidence as shown by the record.

Police Officer White on July 15, 1947, went to the Step Inn Club, 1313 Park Street, Alameda, owned and operated by the defendant Peter Makris. While there he saw an unidentified man place a bet with Makris; he saw Makris then make a telephone call at the telephone behind the counter and call off a lengthy list of numbers and amounts of money, among other phrases using the words ‘To win, to place, to show.’ White then placed a bet with Makris, giving him $2.00. He went back again the next day, July 16, and saw a woman place a bet with Makris, after which Makris made a telephone call similar to the one he had made the day before, but called the party on the other end of the line ‘John.’ The same unidentified man of the day before placed a bet and Makris put the money received in his pocket. White then indicated to Makris that he had won the bet he had placed the day before; Makris ‘checked the list,’ and paid White $4.70. White placed a second bet and left. He returned again on July 18 and placed a third bet. At none of these times was Makris arrested.

Police Inspector Johnson testified that on February 3, 1949, or nearly 18 months after the visit of Officer White, he went with three other police officers in plain clothes (White not among them) to the Step Inn Club, asked the patrons inside to leave and then searched the place. In a drawer in back of the bar they found approximately 45 sheets of paper, ruled with horizontal and vertical lines, mimeographed, and with no writing thereon. The defendant Steccone at that time was observed walking across Park Street, and he entered the club. Inspector Tulloh searched Steccone and found on his person a ‘Daily Bulletin and Sports Review’ of February 3, 1949, some other papers and a sheet of paper with writing on it, having columns of figures and the name ‘Pete’ at the top. Tulloh placed them on a shuffleboard table, and Steccone grabbed the latter sheet and tore it into pieces. Inspector Johnson picked up the pieces and stated to Steccone that it was ‘a very foolish thing to do’ and Steccone said, ‘yes, he guessed it was.’

The officers then went to Steccone's home, at 136 Santa Clara Avenue, Alameda, where Mrs. Steccone let them in. In the rumpus room they found an adding machine with a tape in it, with the same figures on it as found on the sheet torn up by Steccone. They also found in a closet in an open cardboard box one ruled sheet of paper similar (but not identical) to those found in the Step Inn Club and also without any writing thereon. Police Officer Eck, an expert witness on methods of keeping records used by bookmakers in the vicinity, said that the various items found in the two places were para phernalia commonly used by bookmakers.

Officer Johnson and Verona Hayden, the police department secretary, testified as to a conversation held between Makris and Johnson, witnessed by Inspector Tulloh, in the office of the Inspector of Police in Alameda on February 3, 1949, after Makris' arrest. Makris stated that the ‘run down’ sheets found in his club had been given him by ‘Johnnie Steccone’ for registering his own (Makris') bets. This statement was admitted in evidence as to Makris only.

It must be borne in mind that appellants were charged with the crime of conspiracy and that before evidence of the acts and declarations of an alleged co-conspirator is admissible against the other the fact of the conspiracy must be proved. Code Civ.Proc. § 1870, subd. 6. As was said in People v. Talbott, 65 Cal.App.2d 654, at page 663, 151 P.2d 317, at page 322, ‘Thus the fact of the conspiracy must be proved before the evidence of said acts or declarations may be considered. The issue, however, need be proved only to the extent of establishing prima facie evidence of the fact. It need not be established by a preponderance of the evidence in a civil action nor beyond a reasonable doubt in a criminal action; the latter doctrine applies only to the issue of guilt.’ See, also, People v. Marvin, 48 Cal.App.2d 180, 119 P.2d 413.

The attorney general contends that there is sufficient evidence to show prima facie a conspiracy between appellants to maintain the two places as charged. As to appellant Makris' association with Steccone's operations at the latter's home he lists the following evidence: (1) The telephone call to ‘John’ for the purpose of laying off bets; (2) the presence of Steccone in Makris' bar with a register of bets in the name of ‘Pete,’ a contraction of Makris' given name, Peter; (3) the adding machine tape at 136 Santa Clara Avenue, containing evidence of the bets shown on the paper taken from Steccone's possession in Makris' bar at the time of the raid; (4) the presence in Makris' bar of blank forms for the registering of bets similar to those found in Steccone's home, and (5) the statement of Makris after his arrest.

As to appellant Steccone's association with the bookmaking activities in appellant Makris' bar, the attorney general recites the following items of evidence: (1) Steccone's presence in Makris' bar at the time of the raid; (2) Steccone's possession in Peter Makris' bar of a register of bets under the heading ‘Pete’; (3) consciousness of guilt on the part of Steccone evidenced by his efforts to destroy the register of bets taken from him in Makris' bar; (4) the adding machine tape in Steccone's home, 136 Santa Clara Avenue, containing figures similar to those on the register of bets taken from Steccone in Makris' bar, and (5) the presence in Steccone's home of blank forms for the registering of bets similar to those found in Makris' bar.

The foregoing evidence would seem to indicate that appellant Makris was operating as a bookmaker at 1313 Park Street and the finding of the register of bets with the that appellant Steccone was operating as a bookmaker at his home at 136 Santa Clara Avenue. But in the instant case appellants are not charged with bookmaking, but are charged only with the crime of conspiracy.

We have read the record carefully and we are unable to agree with the attorney general that a prima facie case of conspiracy between the appellants was proved.

There is nothing in the record from which we would be justified in inferring that the ‘John’ to whom appellant Makris telephoned in July, 1947, was the appellant John Steccone. The name ‘John’ is a rather common name, and there is no evidence of any communication or contact between Makris and Steccone which would support an inference that the ‘John’ to whom Makris telephoned in July, 1947, was the John Steccone who walked into the Step Inn Club on February 3, 1949, nearly 18 months later. Nor do we believe that the finding of the register of bets with the name ‘Pete’ written at the top on the person of appellant Steccone when he walked into the Step Inn Bar, standing alone without other connecting circumstances, is sufficient to justify the inference that said ‘Pete’ was the appellant Makris, and that he was engaged in a conspiracy with Steccone. The finding of the adding machine tape in Steccone's home with the same figures on it as were on the paper taken from Steccone was evidence of the bookmaking activities of Steccone but it shows no connection between Makris and Steccone. Similarly, the finding in appellant Makris' bar of blank forms for the registering of bets similar to those found in Steccone's home is evidence of bookmaking activity on the part of Makris, but it does not show any connection between them.

As to the evidence relied upon by the attorney general to prove a prima facie case of conspiracy against appellant Steccone, we do not believe that the presence of Steccone in Makris' bar, having in his possession a register of bets with the name ‘Pete’ at the top, together with the evidence that Steccone attempted to destroy the register of bets taken from him, and the evidence that in Steccone's home there was adding machine tape bearing figures similar to those on the said register of bets and also blank form for the registering of bets similar to those found in appellant Makris' bar, are sufficient to make out a prima facie case of conspiracy against appellants. In a criminal case an inference cannot be based on surmise, conjecture, or suspicion; the inference must be one which reasonably can be drawn from the evidence. Here the evidence would justify an inference that Steccone was engaged in bookmaking activities but it falls far short of showing a conspiracy between Steccone and Makris. It fails to show any connection between Makris and Steccone, as the fact that their given names were ‘Pete’ and ‘John’ is barely sufficient to support a suspicion of guilt. As was said in People v. Long, 7 Cal.App. 27, at page 33, 93 P. 387, at page 390: ‘Conspiracies cannot be established by suspicions. There must be some evidence.’

We conclude, therefore, that the People failed to prove a prima facie case of conspiracy against appellants or either of them. This being so, the trial court erred in admitting evidence of the acts and declarations of each alleged co-conspirator against the other.

Appellants contend further that, even assuming that all of the evidence admitted by the court was properly admitted, the evidence taken as a whole was insufficient to prove the alleged conspiracy, and that appellants' motions for a new trial should have been granted.

The evidence presented in the instant case was very meager, and we are unable to find sufficient evidence in the record to support a finding that either appellant Makris or appellant Steccone was guilty of conspiracy. There is sufficient evidence from which the jury could infer that they were each guilty of bookmaking, but there is no admissible evidence from which a reasonable inference could be drawn that Makris and Steccone conspired together for that purpose. While the evidence may raise a suspicion, it does not prove the participation of appellants in any conspiracy. As was said in People v. Rodriguez, 37 Cal.App.2d 290, at page 294, 99 P.2d 363, at page 365: ‘It appears timely that some consideration be given to the popular but erroneous belief that less convincing evidence is required to support a judgment of guilty where the offense of conspiracy is charged. Such a belief is wholly unwarranted. Moreover, to charge conspiracy produces no advantage for the plaintiff, nor does such a charge create burdens for the defendant, any different with regard to each than might be expected in connection with the trial for other offenses. The crime of conspiracy is no more heinous, nor is it fraught with graver consequences, than other offenses. Fancied handicaps incident to the prosecution of other offenses cannot be overcome in the trial of a criminal action by merely charging conspiracy.’

The attorney general calls attention to the fact that neither of the appellants testified in his own defense, and asserts that the trial court and the jury had a right to draw unfavorable inferences from such failure, citing article I, section 13, of the Constitution of California. But, as said by this court in People v. Zoffel, 35 Cal.App.2d 215, at page 221, 95 P.2d 160, at page 163: ‘The burden rests on the prosecution and not the defense. Section 13 of article I of the state Constitution, permitting the prosecution to comment on the failure of the defendant to take the stand, cannot be used to supply a failure of proof by the prosecution.’

We have set forth a fair summary of the evidence introduced in the case, and for the reasons hereinbefore given we are convinced that as a matter of law the evidence falls far short of being sufficient to support a conviction of the crime of conspiracy. Under such circumstances the trial court should have granted appellants' motions for new trial.

Appellant Steccone makes the further contention that the court erred in giving certain instructions and also erred in refusing certain instructions offered by said appellant. We have reviewed the instructions and believe that, assuming the evidence was sufficient to submit the case to the jury, the court fully and fairly instructed the jury on the law applicable to conspiracy.

In view of the foregoing, the purported appeals from the judgments must be dismissed, and the orders denying appellants' motions for new trial should be, and each of them is, hereby reversed.

SCHOTTKY, Justice pro tem.

PETERS, P. J., and BRAY, J., concur.

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