PEOPLE v. Ora Mae Jennings, Defendant and Appellant.

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District Court of Appeal, Second District, Division 3, California.

PEOPLE of the State of California, Plaintiff and Respondent, v. Ora Mae JENNINGS, Joseph Faye and Melvin Rowitz, Defendants, Ora Mae Jennings, Defendant and Appellant.

Cr. 7058.

Decided: August 05, 1960

Joseph T. Forno, Los Angeles, for appellant. Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., William B. McKesson, Dist. Atty., Harry Wood and Harry B. Sondheim, Deputy Dist. Attys., Los Angeles, for respondent.

Ora Mae Jennings, accused with two others of one offense of violation of subdivision 1 of Section 337a of the Penal Code and of two violations of subdivision 2, one of which was dismissed, was convicted on two counts and was placed on probation. She appeals from the order of probation, as from a judgment, and from an order denying her motion for a new trial.

The points argued on the appeal are claimed insufficiency of the evidence of the People and error in the receipt of evidence seized by the arresting officers. We find in the record ample evidence of appellant's guilt and no basis for the claim of error in the admission of evidence.

The case was tried without a jury and pursuant to stipulation upon the evidence adduced at the preliminary. No affirmative defense was offered.

There was evidence of the following: Officers Brittell, Brown and Weir went to premises 862 West 55th Street in Los Angeles; from outside the house Officer Brittell heard a telephone ring; appellant answered as follows: ‘Hello, who is this?’ and then ‘Okay. In the fourth, number 5, two to win. In the fifth, number 2, across. Yeah. That's Money Wasted in the fourth and Charge It in the fifth. Okay.’ The officers announced themselves and forcibly entered the house; appellant ran into the bathroom, threw some paper into the toilet and flushed it. No one else was present. Three copies of the National Daily Reporter were recovered, one of the date of the arrest, two of the previous day; also found was a ‘parley manual’ and a utility bill in appellant's name. Shortly thereafter a man called by phone, asked for Ora and when Brittell said he was Johnny, a friend of Ora's, the man said ‘All right. For J. S. in the eight[h] at Hollywood, give me Chico Red. Four to win, two to place.’ Chico Red, Money Wasted and Charge It were horses running at Hollywood Park on the day of the arrest. Opinion evidence was given by Officer Brittell, an expert in the field, that appellant was receiving bets, recording them and relaying them to ‘higher ups'—a reasonable deduction with which the trial judge agreed and we cannot disagree.

The argument that there was an unlawful entry and seizure of papers should not have been made. The attorney for appellant knew or should have known that there was an objection made at the preliminary, but that it was withdrawn, and that when the articles seized by the officers were offered and received in evidence appellant's then attorney stated that he had no objection. The attempt to claim error under these circumstances is sly practice.

The judgment and order are affirmed.

SHINN, Presiding Justice.

VALLEE and FORD, JJ., concur.