PEOPLE v. CAHAN

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

PEOPLE of the State of California, Plaintiff and Respondent, v. Charles H. CAHAN, Defendant and Appellant.

Cr. 5181.

Decided: October 07, 1954

Russell E. Parsons, Beverly Hills, for appellant. Edmund G. Brown, Atty. Gen., Elizabeth Miller, Deputy Atty. Gen., for respondent.

After trial before the court without a jury defendant Charles H. Cahan appeals from a judgment of guilty of conspiring to engage in pool-selling and bookmaking; to keep and occupy rooms for the purpose of receiving bets and wagers; to accept bets and wagers, to record and register bets and wagers on the results of horse races. There is also an appeal from the order denying his motion for new trial.

Question

I

Was there substantial evidence to sustain the judgment of guilty?

Yes. The following rules are here applicable:

1. Where a number of persons conspire to commit a crime each is criminally responsible for the acts of his co-conspirators performed in furtherance of the agreed plot. (People v. Benenato, 77 Cal.App.2d 350, 356 [2], 175 P.2d 296.)

2. It is not necessary that a party to a conspiracy be present and personally participate with his co-conspirators in all or any of the overt acts. It is sufficient if there be some one act done by one or more of the parties to effect the object of the conspiracy. (People v. Benenato, supra, 77 Cal.App.2d 356[1], 175 P.2d 296.)

3. On appeal the reviewing court will not determine the weight of the evidence but will decide only whether upon the face of the record it can be held that sufficient facts could have been inferred from the evidence by the trier of fact to sustain the finding of the existence of the essential elements of the crime charged against defendant. (People v. Newland, 15 Cal.2d 678, 681, 104 P.2d 778.)

4. A conspiracy may be established by circumstantial evidence. (People v. Benenato, supra, 77 Cal.App.2d 358[7], 175 P.2d 296.)

Applying the foregoing rules to the record in the instant case we find that the evidence discloses the following:

In December 1952, two telephones with different numbers were installed at 1541 Glenville Street, Los Angeles; on January 29, 1953, Joseph Cashan rented a house at 1812 South Orchard Avenue, and within a few days two telephones, Prospect 9654 and Prospect 9913 were installed; thereafter, Joseph Cahan, Carr, Crump and Salvino were seen at the Orchard Avenue house.

On March 5, 1953, a listening device was installed in the house at 1812 South Orchard and thereafter the police listened to and made recordings of the talk and sounds which went on in the house. Much of the talk was by Carr, Crump and Duncan and had to do with such things as ‘a two and two parlay’; ‘four to show’; ‘Silver Kay two to win, one to win’; ‘Melody three to win, two to place.’

On March 13, 1953, Joseph Cahan, while at 1812 South Orchard Avenue, said: ‘Meet me in back of the drive-in at Wilshire and Vermont and I will have the tickets for you myself.’ He continued talking and changed the meeting place to the drive-in at Wilshire and Hoover at 1:25. A few minutes later his voice was heard directing some one to ‘send Rusty down to the drive-in at the corner of Wilshire and Hoover. That's across from the Town House Hotel, Wilshire and Hoover, and I will meet her there and give her some tickets. Have her there at 1:25. That's 10 minutes from now. Tell her to make sure nobody follows her * * *’

Joseph Cahan left the house at 1812 South Orchard and went to the drive-in at Hoover and Wilshire, carrying a small brown bag. Defendant and Mary Jo Jurin met him there at 1:30 and at 1:35 they left, after Joseph Cahan had given Mary Jo Jurin his brown paper bag.

On March 16, 1953, a telephone was installed in apartment 3 at 5877 West Olympic Boulevard, number Webster 31501, and a second telephone was also installed at 152 South Sycamore, the number being Webster 12833.

On March 19, 1953, Crump and Duncan left 1812 South Orchard together and Crump later met Stuart Greenfield and Gloria Wallace in a drug store. Thereafter Greenfield went to 1541 Glenville.

On March 23, 1953, a telephone was installed at 1852 Middleton Place, number Axminster 38645. A second telephone was installed in apartment 3 at 5877 West Olympic Boulevard, number Webster 37008.

On March 25, 1953, Carr parked his automobile at First and Detroit and entered a car driven by Duncan.

On March 31, 1953, and again on April 2, 1953, defendant was seen outside 1541 Glenville.

On April 6, 1953, a listening device was installed at 1541 Glenville and on April 7, 1953, officers heard the voice of Stuart Greenfield coming over the loudspeaker attached to the installation. The voice stated, among other things, ‘this is the bookkeeper’ and ‘Mort told me to call and check on your tickets for Saturday.’ Then followed talk in sums of money and mention of ‘bets.’ On the same day, a telephone was installed in apartment 6, 2341 Avenue 31, number Capital 28596, and a second telephone was installed at 4834 18th Street, number Webster 17961. Also on that day the car which Duncan had been seen driving on previous occasions was parked at 1024 Rowan Street.

On April 8, 1953, at about 1:00 p.m., William Hall was arrested at 1852 Middleton Place. At the time and place of the arrest officers found a mirror with marks on it, wax pencils, and damp rags. The two telephones rang about 50 times while the officers were there. An officer answered them and after comparing the words and figures which the voices had told him over the telephone, he formed the opinion that the telephone statements were wagers on horses for that date. At 1:15 p.m. of the same date Stuart Greenfield, at 1541 Glenville, was heard by the officers over the loudspeaker to say, ‘we lost the Axminster number 58645, a 38645.’ Also on April 8, 1953, a second telephone, Capital 7271 was installed in apartment 6 at 2341 Avenue 31.

On April 11, 1953, Joseph Cahan was heard to say over the loudspeaker attached to the installation at 1541 Glenville, ‘Don, switch all your customers on a direct line to Webster 17961.’

On April 14, 1953, Stuart Greenfield, Joseph Cahan and defendant were heard over the loudspeaker installed at 1541 Glenville and defendant was heard to say, ‘we done 400 tickets Saturday. That's the most tickets we've done since October.’ Defendant talked of horses and a race, and ‘what's doing Bud? The new number is Webster 179—it's a direct line—straight line1 —the other ones are all right but switch your accounts over to the new number.’ Later the same voice said, ‘Well, that was just what I was thinking but Joe took his bet here, it takes awhile to switch everybody. What's the number of the new Webster?’ to which Stuart Greenfield answered, ‘19706–17961.’ (Webster 17961 was the number of the telephone installed at 4834 18th Street on April 7, 1953.)

On the same day, Joseph Cahan, Stuart Greenfield and defendant left the rear door of 1541 Glenville and walked into the back yard where they had a conversation in which defendant mentioned a person named Joe, who ran a hot dog stand, who was to go to work for them, and Joseph Cahan said that the man could be trusted; that he had been mixed up in narcotics. Thereafter defendant and Stuart Greenfield returned to the house and their voices were again heard over the loudspeaker. Defendant said, ‘Have the girl call me at the bookkeeper's will ya,’ and later he said, ‘Hello, how's everything going. Slow. O.K., I'll get * * * bets on these girls * * * call the clerks to get the following instructions. They don't take any messages from any customers. The only message they'll take is from somebody to have—you know the message when they call—you'll tell 'em, oh, if they want the bookkeeper to call 'em take that message. But outside that, they don't, they don't leave a message like a, from a, the agent Pat to have a, to tell a customer that he'll see him at 5 and won't be late’; ‘Hello Jack. Yeah, this is Chuck’; ‘Tie up the number, have you got it tied up?’

About 2:00 p.m. on April 14, 1953, Mary Jo Jurin was arrested in Apartment 3 at 5877 West Olympic Boulevard. In the bedroom of the apartment the officers found a sponge, two grease pencils, the sports section of the Times, and a piece of glass with words and figures on it which, in the opinion of the officers, were names and identification numbers of betters and agents, tracks, horses and wagers on horses running on April 14, 1953. In the officers' opinion the glass was a betting marker. There were two telephones, Webster 37008 and Webster 31501. While the officers were there one of the telephones rang a number of times and voices on the other end gave the answering officer what in his opinion were wagers on horses.

At 2:30 p.m. on that date defendant was heard over the loudspeaker connected with the installation at 1541 Glenville saying, ‘31501 (interference) 31501 * * *’ (Webster 31501 was one of the telephones at 5877 West Olympic where Mary Jo Jurin had been arrested a little over an hour before.) Defendant then said, ‘Yeah, 17961. You may check the phone number to make sure they're calling you on that number because the cops getting it. Webster * * * Thank you buddy.’ (Webster 17961 was the telephone number installed at 4834 18th Street on April 7, 1953.) Defendant then said, ‘Hello, who's this? Joe—is Joe there? Is Scherrer there—Scherrer—do you know Scherrer?’ and then, ‘They've got a girl in there that says she's Joe.’ After further conversation he said, ‘Hello what's doing—we lost one of the stations,’ and ‘get yours we're gonna use Capital 7271—Capital * * * Right now, I just tied it up and * * *’ (Capital 7271 was installed at 2341 Avenue 31.) Later he said, ‘Dial that Webster, see how long ya can talk to the girl that answers the phone will ya, ya, Webster 31501, without saying who you are just talk to her for a while, don't give her any action or additional bets, but just talk to her, O.K. fine, by bye.’

On April 15, 1953, Stuart Greenfield and defendant were heard over the loudspeaker at 1541 Glenville, defendant saying, ‘Same thing—here's what we have to do—they have to call in, the customers should call in and leave a number, the boys will call them back and take off their action. In other words your customers can call in from a phone booth, otherwise, if they want to * * * customer * * * they would have to call them in themselves all day and * * * with your people.’ Several times defendant mentioned ‘action.'2 Defendant was also heard to say, ‘Hello, Black, this is Chuck—his call back number3 —yeah—well, * * *’

On April 18, 1953, Salvino was arrested at 1812 South Orchard. At the time police officers found two telephones, Prospect 9645 and Prospect 9913, a racing section of the Times, spot remover, two grease pencils and a glass topped coffee table on which there were some markings. On the same day Gertrude Patton was arrested at 4834 West 18th Street. In her possession was a piece of glass with wax notations on it,4 black wax pencils, a can of energine and a dirty rag. There were also two telephones, Webster 17961 and Wyoming 4125. While the officers were there the telephone rang about 20 times and persons endeavored to place bets.

On the same day, Carr and Duncan were arrested at 1024 and 1026 Rowan Street. They had in their possession betting markers and a black book which contained an index of betters, showing their identification by number.

On April 18, 1953, Daniel Robin Ford was arrested in apartment 6 at 2341 Avenue 31. There were two telephones, Capital 7271 and Capital 28596, a large wet piece of glass, a rag, a Mirror sport section, and wax pencils. The telephones rang a number of times and persons endeavored to place bets on horses running throughout the United States on that date.

Ethel Leonard was arrested at 746 3/4 Lillian Way on April 18, 1953. She had in her possession a magic slate. The telephone, Granite 3265, rang and when a policewoman answered the voice on the other end gave a number, or a number and telephone number, and hung up. When the plicewoman told one of the callers that she would take the action there, the caller said, ‘7th Keeneland, Spanish Armada, 20, 25, 5. That's $50.00.’

Also on April 18, 1953, Stuart Green-field was arrested at 1541 Glenville. The officers found numerous pieces of paper with writing on them, which were betting markers, and a book containing names and telephone numbers of betters, which names and numbers in some instances coincided with those found written on glass and papers at 4834 West 18th Street, 152 South Sycamore, 1024 Rowan Street, and 746 3/4 Lillian Way; also papers on which were written AX 38645 and AX 35466 (the telphone numbers from 1852 Middleton Place), CA 7271 (a telephone number from 2341 Avenue 31, apartment 6), Prospect 9913 and Prospect 9645 (the telephone numbers at 1812 Orchard), Webster 17961 and Wyoming 4125 (the telephone numbers at 4834 18th Street), and Webster 41501 and Webster 37008 (the telephone numbers at 5877 West Olympic Boulevard); also owe sheets containing a record of money owed by or to a bookmaker by a better or agent and a piece of paper containing the names of Blanche Owens, Ethel Leonard, Gloria Wallace, Leonard W. Crump, Martin Carr, Gertrude Patton, Lawrence Salvino and William Hall; there were several pieces of paper containing the name ‘Chuck.’

On April 22, 1953, an officer took various papers from the penthouse at 1275 Westchester Place. On the same date defendant said that he lived in the penthouse at such address. An expert compared notations made on such papers with those on the documents seized at the Glenville address and testified that in his opinion the writing had been made by the same person.

In the opinion of an expert of the police department there is in Los Angeles County a bookmaking operation known as a ‘relay.’ Customers or agents of the bookmaker have a telephone number or a place to which they telephone their wagers, usually giving their names or other identifying information, the horses they wish to bet on, and the amounts they wish to bet. The person to whom they give this information writes it down at what is called the ‘relay’ or ‘relay spot.’ At intervals some one known as the ‘right end of the relay’ telephones to the ‘relay’ and takes all of the wagers which the ‘relay’ has received, and as soon as the ‘relay’ passes along this information, he destroys his recordation of it, so that if the ‘relay spot’ is discovered there is no evidence of wagers on horses there at the time of detection. The paraphernalia kept at a ‘relay spot’ consists usually of telephones, a piece of glass or linoleum, grease pencil which can be erased with a sponge, lighter fluid, rags, and pieces of paper—anything which can be destroyed.

From the foregoing evidence the trier of fact could reasonably have inferred that in March 1953, 1812 Orchard was being used as a place in which bets were taken and that Carr, Crump and Duncan were taking bets; that on April 18, 1953, it was being used as a ‘relay spot’; that 1852 Middleton Place was also being used as a ‘relay spot’ under the direction of Hall; and that the telephones at 1852 Middleton Place and 1541 Glenville were being used in connection with the operation; likewise that 1541 Glenville was being used as a place from which bookmaking operations were being directed by defendant in cooperation with the other parties who were mentioned who had entered into a conspiracy to accept wagers on the results of horse races. From the foregoing evidence it is clear that defendant was an active participant in this conspiracy.

There is no merit in defendant's contention that he did not know his codefendants. There was direct evidence to the contrary, which was believed by the trier of fact. Likewise without merit is his contention that the sound recordings which were received in evidence did not record the voice of defendant. The police officers identified the voice and the trial judge had the opportunity of comparing the records with the voice of defendant while he was testifying in court. Finally, defendant's assertion that the conversations of the other alleged conspirators should not have been received in evidence against him for the reason that there was no showing that he had any guilty knowledge of the activities of the conspirators is without merit, for it is evident from the evidence set forth above that he knowingly participated in the activities of the conspirators.

II

Did the trial court err in receiving in evidence the telephone conversation listened to by the officers after they had surreptitiously placed dictaphones on the premises without obtaining search warrants?

No. All of defendant's contentions and objections to the reception of such evidence have been answered contrary to his views in People v. Irvine, 113 Cal.App.2d 460, 462 [1] et seq., 248 P.2d 502 (hearing denied by the Supreme Court). (See also Irvine v. California, 347 U.S. 128, 74 S.Ct. 381.) No useful purpose would be subserved by here repeating the principles of law set forth in the foregoing decisions. (Cf. Thatch v. Livingston, 13 Cal.App.2d 202, 203, 56 P.2d 549.) Rochin v. California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183 is not applicable to the facts of the instant case. See Irvine v. California, supra, 74 S.Ct. at page 383, in which it is said: ‘An effort is made, however, to bring this case under the sway of Rochin v. People of California, 342 U.S. 165, 72 S.Ct. 205, 96 L.Ed. 183. That case involved, among other things, an illegal search of the defendant's person. But it also presented on element totally lacking here—coercion (as the Court noted, 342 U.S. at page 173, 72 S.Ct. at page 210), applied by a physical assault upon his person to compel submission to the use of a stomach pump. This was the feature which led to a result in Rochin contrary to that in Wolf. [See Wolf v. Colorado, 338 U.S. 25, 69 S.Ct. 1359, 93 L.Ed. 1782.] Although Rochin raised the search-and-seizure question, this Court studiously avoided it and never once mentioned the Wolf case. Obviously, it thought that illegal search and seizure alone did not call for reversal. However obnoxious are the facts in the case before us, they do not involve coercion, violence or brutality to the person, but rather a trespass to property plus eavesdropping.’ (Italics added.)

The judgment and order are and each is affirmed.

FOOTNOTES

1.  ‘Straight line’ in the opinion of experts is a phone spot to which betters call directly to place their wagers.

2.  In the opinion of experts ‘action’ is the taking of wagers on horses.

3.  In the opinion of experts a ‘call-back operation’ as used in bookmaking in Los Angeles has two locations, one the ‘call-back’ and the other the ‘right end of the call-back.’ Customers and agents telephone to the ‘call-back’ and leave their names or other identifying information. This information is recorded at the ‘call-back’ and the ‘right end of the call-back’ telephones to the ‘call-back’ at intervals and receives the identifying information from the ‘call-back.’ The ‘right end of the call-back’ then telephones to each of the customers so identified and takes his wagers.

4.  In the opinion of experts the glass with writing on it was a betting marker.

McCOMB, Justice.

MOORE, P. J., and FOX, J., concur.