PEOPLE v. JERMAN (1945)

In an information containing two counts, defendant was charged with (1) unlawfully occupying a room for the purpose of bookmaking, and (2) unlawfully recording and registering bets on horse races, in violation of subdivisions 2 and 4 of section 337a, Penal Code. The jury found him guilty of the offenses charged in both counts and judgments of conviction were duly entered. Thereafter, defendant's motion for a new trial was denied, execution of sentences was suspended, and he was granted probation for a period of five years under certain prescribed conditions. He prosecutes this appeal from the judgments of conviction and from the order denying his motion for a new trial.

Appellant here contends (1) that the trial court erred in overruling his standing objection to the admission in evidence of certain telephonic conversations had between the arresting officers and third persons, and in denying his motion to strike such testimony from the record; (2) that the court also erred in refusing to give three instructions requested by appellant, which were based upon his theory of the cause.

On September 20, 1944, appellant, a cripple confined to his bed, was occupying with his mother and sister a dwelling house in Long Beach. At 2:10 p.m. on that day, Officer Thiele entered the front door thereof which was unlocked, and Officer Stovall gained access to the house by forcing the lock on the back door. Said officers found appellant lying in bed in his bedroom dialing a French type telephone, which was an extension of a wall telephone installed in another room. Partially over the bed was a desk attached to an arm of pipe swinging from the right and containing several compartments in which were found a filing system, pens, pencils and paper. At appellant's left was a table holding a cabinet, the center portion of which was hollow and contained a radio without a case. When Officer Stovall entered the room, the radio was in operation, reproducing the sound of race track results, but when he took the telephone from appellant and listened, the line was dead. It was then discovered that the receiver had been taken off the hook of the telephone in the hall. Shortly thereafter the telephone started buzzing and Officer Stovall answered. Said officer testified that the first call came through at 2:20 p.m., to-wit: ‘A male voice on the phone asked ‘Tommy?’ and I said ‘Yes.’ He said, ‘Give me Bay Meadows, 22, one to place; 32, one to place; 64, one to place; did you get it?’ I said, ‘Yes.’ And he hung up.' After giving the context of three telephone conversations between himself and persons calling on appellant's phone, Officer Stovall qualified as an expert on bookmaking activities as carried on in the vicinity of Long Beach and neighboring communities, and proceeded to explain the significance of the language used by the persons calling, to-wit: ‘It signified to me that the person ‘Tommy’ to whom this conversation was directed was receiving bets over the telephone on horse racing.' The witness then testified that a loudspeaker was obtained from the police car and installed in appellant's bedroom; that by placing a magnetic device around the mechanism of the telephone ‘it reporduces all of the conversation going over the telephone both by the phone in its immediate presence and the phone on the other end through which the conversation is being picked up. It has a volume control on it that can be turned up so that it fills the entire room with this conversation and you then get the conversation of the person in the room with you over the phone and the person at the other end of the phone. In other words, you get the whole picture through this loudspeaker arrangement.’

In the room where appellant was lying the officers found a Metropolitan Scratch Sheet and a daily racing form. They also found a black book in a closet of an adjoining room, which Officer Stovall testified was a betting record. They also found some torn sheets of paper which said witness stated were betting markers of a previous date, and some papers bearing names of race horses and the notation ‘No bets accepted’, which said officer testified were records of bets made with appellant. Officer Stovall also testified that while he was in appellant's room, the telephone rang ten or fifteen times, and in each instance, when he answered, the person calling asked for Tommy and upon being assured that Tommy was speaking, such person placed a bet upon a horse race. Officer Stovall left appellant's apartment at 3 o'clock, leaving Officer Dyer with appellant. Officer Dyer testifying as an expert gave as his opinion that the radio, racing forms, scratch sheets, telephone and slips of paper found in appellant's room were standard bookmakers' equipment. He also testified respecting some forty-four specific calls which came in over the telephone between 2:28 and 4:32 p. m. on the day in question, giving the precise content thereof in almost every case. In four instances he asked the person making the call ‘Do you want to bet?’ and received an affirmative answer each time.

Appellant took the stand in his own defense and stated: ‘I am a system analyst and also operate a handicapping system service * * * I have developed a racing system and sell it to the general public’ for $200; that he used a racing form and that his customers ‘call in their selections every day and I check them, that is, make any corrections and errors that they might make and also to see if they have mastered the system or handicap method, whatever one I have sold them’; that he then marked down such selections on betting sheets; that ‘when I first teach them this system, I require them to call their selections to me on a probationary period—about 10 or 12 days—until I am sure that they have it mastered.’ Appellant's attention was directed to a sheaf of bookmakers' betting sheets (Exhibit 5) and other papers found in his apartment, and he explained that they were records of bets made by purchasers of his system. Appellant testified that on the day in question, Officers Stovall and Thiele came to his home about 2:10 p.m., Officer Dyer arriving at 2:20 and Mr. Sten around 2:30; that they installed a reproducing unit with a loudspeaking device and attached it to his telephone; that Officer Stovall took three calls and then turned the telephone over to Officer Dyer who remained until 5:05 p.m. Appellant admitted that he heard all of the phone calls that came in over the loudspeaker while Officer Dyer was there; that during that period he recognized the names of five or six as being clients of his; but that the ‘only call actually come in that afternoon that I recognized, that is, that told me that she was going to place a bet on a horse’ was that of a Mrs. Hap. It was also admitted by appellant that he told a couple of his clients over the telephone on the day of his arrest that the ‘cops' were out there trying ‘to pin something’ on him. Appellant also testified that while the entires made on the so-called betting sheets were records of bets made by his clients, they were not records of bets made with him or with any person known to him, and that he had no financial interest in any bet so made by his clients or recorded by him on the said betting sheets. With respect to the black book which the arresting officers found in a closet of an adjoining room, appellant explained that ‘It is a record of my system and handicap players'; that the entries therein contained ‘were phoned to me by a party who bought my handicapping method. * * * I wrote them down here just the same as they give them to me over the telephone’; and that by reference to his Metropolitan Sheet he could tell how many of his selections won; that he had a rest period from 1 to 4 p. m. each day; that he seldom had calls from his customers after 1 o'clock and he gave the black book to his sister to put away because the officers on a previous occasion ‘stole a book from me containing 19 systems that I had spent 12 years compiling and they never would return it.’ Appellant also explained that the receiver was off the hook of the main telephone in his house because ‘I take a treatment here every day from 1 to 2 o'clock and either they take my phone off or my mother leaves that one off in the hallway there so that I won't have to answer this phone, because, if I try to pick up that phone, I get a shock. This is an electric treatment and there is a possibility of a shock if you do so. That is charged with electricity.’ That a radio-therapy machine which he used for this treatment every day was in his room when the officers came.

In the recent case of People v. Radley, Cal.App., 157 P.2d 426, 427, appellant contended there, as here, ‘that the court erred in receiving evidence of the conversations on the telephone between the arresting officers and those who called the house in question with reference to their bets.’ The court held: ‘It is the established rule that the court may properly receive evidence of such conversations, not for the purpose of establishing the truth of what was said over the telephone, but for the purpose of establishing that the room was being occupied for placing bets on horse races. People v. Joffe, 45 Cal.App.2d 233, 235, 113 P.2d 901; People v. Reifenstuhl, 37 Cal.App.2d 402, 405, 99 P.2d 564. In 6 Wigmore on Evidence, 3d Ed., Sec. 1766, p. 178, the author explains why the admission of such evidence does not do violence to the hearsay evidence rule: ‘The prohibition of the Hearsay rule, then, does not apply to all words or utterances merely as such. If this fundamental principle is clearly realized, its application is a comparatively simple matter. The Hearsay rule excludes extrajudicial utterances only when offered for a special purpose, namely, as assertions to evidence the truth of the matter asserted.’' See, also, People v. Kelley, 22 Cal.2d 169, 176, 137 P.2d 1; People v. Klein, Cal.App., 163 P.2d 71; People v. Barnhart, 66 Cal.App.2d 714, 721, 153 P.2d 214; People v. Onofrio, 65 Cal.App.2d 584, 590, 151 P.2d 158; People v. Pruitt, 55 Cal.App.2d 272, 274, 130 P.2d 767.

In accordance with the foregoing, there was no error in the admission in evidence of the telephone messages.

In connection with his second point, appellant urges that since the evidence produced against him was entirely circumstantial, he was entitled to an instruction that where circumstantial evidence is relied upon it must be irreconcilable with the theory of innocence; therefore, the court erred in refusing to give the following instruction requested by him: ‘You are instructed that in order to convict upon circumstantial evidence, it is necessary not only that all the circumstances concur to show that the defendant committed the crime charged, but it must also be shown that these circumstances taken as a whole are inconsistent with any other rational conclusion, and it is not sufficient that the circumstances proven coincide with, account for, and therefore render probable the hypothesis sought to be established by the prosecution, but they must exclude to a moral certainty every other hypothesis, except the single one of guilt, or you must find the defendant not guilty.’

The only instructions given to the jury relating to the subject of circumstantial evidence were the following:

1. ‘You are instructed that in considering whether or not certain premises containing books, papers, paraphernalia or apparatus are being occupied for the purpose of recording bets, you may take into consideration all of the surrounding circumstances, including the conduct of the person when confronted by police officers, and if the conduct of such person indicates a consciousness of guilt, you have a right to take that circumstance into consideration in determining the intent with which he was occupying the room, if you find he was so occupying such premises, and the purpose for which the papers, paraphernalia or apparatus was being used, if you find such papers, paraphernalia or apparatus present in such premises. The jury has a right to take into consideration all of the surrounding circumstances which may be shown in evidence to determine the intent with which an act is done.’

2. ‘There are two classes of evidence recognized and admitted in courts of justice, upon either of which juries may lawfully find an accused guilty of crime. One is direct evidence, which is the direct testimony of an eyewitness to a transaction, and the other is circumstantial evidence, which includes all evidence other than that of an eyewitness. Such evidence may consist of any acts, declarations or circumstances admitted in evidence tending to prove the crime charged, or tending to connect the defendant with the commission of the crime. If upon consideration of the whole case you are satisfied to a moral certainty and beyond a reasonable doubt of the guilt of the defendant, you should so find, irrespective of whether such certainty has been produced by direct evidence or by circumstantial evidence. The law makes no distinction between circumstantial evidence and direct evidence in the degree of proof required for conviction, but only requires that the jury shall be satisfied beyond a reasonable doubt by evidence of either the one character or the other, or both.’

3. ‘If the evidence in this case, as to any particular count, is susceptible of two constructions or interpretations, each of which appears to you to be reasonable, and one of which points to the guilt of the defendant, and the other to his innocence, it is your duty, under the law, to adopt that interpretation which will admit of the defendant's innocence, and reject that which points to his guilt.’

In People v. Hatchett, 63 Cal.App.2d 144, 146 P.2d 469, it was held that a defendant is entitled to an instruction similar in import to that here requested and refused, and also that the prejudicial effect of the failure to give such instruction was not cured by the fact that the trial court gave two instructions which were practically identical with the instructions given herein numbered 2 and 3, above set forth.

It was stated in the cited case, 63 Cal.App.2d at page 152, 146 P.2d at page 473: ‘There was nothing inherently improbable in defendant's account of the shooting and it cannot be said from a reading of the record that the jury could not reasonably have reconciled all of the established circumstances with the theory of defendant's innocence. It is because of this state of the evidence that the instructions of the court should be subjected to a critical examination. * * * We find appropriate to our discussion the statement of the Supreme Court in People v. Newcomer, 1897, 118 Cal. 263, at page 267, 50 P. 405, at page 406, ‘Under these circumstances, if the appellant was justified in killing the deceased, as he might have been, he was in the embarrassing position of one who justly kills another when there is no other witness to the homicide, when he has to admit the homicide, and depend greatly upon his own testimony to justify it. In such a case it is evident that a jury will have difficulty in determining the real facts; and in such a case it is apparent that the instructions of the court are very important, particularly when, as in the case at bar, the court instructs at great length. Under such circumstances, any instruction tending to lead the jury from the real issues in question is material, and, if erroneous, is reversible error.’ * * * (63 Cal.App.2d at page 155, 146 P.2d at page 475). Neither the statement in an instruction that the guilt of the defendant must be established beyond a reasonable doubt, nor the statement that as between two opposing reasonable inferences the one which is consistent with innocence must be preferred to the one tending to show guilt, satisfies the right of the defendant to have the jury instructed that where circumstantial evidence is relied upon by the People it must be irreconcilable with the theory of innocence in order to furnish a sound basis for conviction.'

The rule so laid down in the Hatchett case, and followed in People v. Rayol, 65 Cal.App.2d 462, 150 P.2d 812, is stated in the syllabus thereof as follows: ‘Where a case is one of circumstantial evidence and admits of a theory either of guilt or innocence, the defendant is entitled to an adequate instruction embodying the rule that, to justify a conviction, the circumstances must not only be consistent with the theory of guilt but must be inconsistent with any other rational conclusion.’ See, also, 8 Cal.Jur. 371; People v. Dick, 32 Cal. 213; People v. McClain, 115 Cal.App. 505, 1 P.2d 1085; People v. Kinowaki, 39 Cal.App.2d 376, 103 P.2d 203. Attention is also directed to People v. Lamson, 1 Cal.2d 648, 653, 36 P.2d 361, 363, where it is stated: ‘Resting its case upon circumstantial evidence, the prosecution must not only show a set of circumstances consistent with guilt, but must show a set of circumstances inconsistent with any reasonable theory of innocence.’

Circumstantial evidence was defined in People v. Morrow, 60 Cal. 142, 143, as follows: ‘There are two classes of evidence recognized and admitted in courts of justice, upon either of which juries may lawfully find an accused guilty of crime. One is direct or positive testimony of an eye-witness to the commission of the crime, and the other is proof by testimony of a chain of circumstances pointing sufficiently strong to the commission of the crime by the defendant, and which is known as circumstantial evidence. Such evidence may consist of admissions by the defendant, plans laid for the commission of the crime, such as putting himself in a position to commit it; in short, any acts, declarations, or circumstances, admitted in evidence tending to connect the defendant with the commission of the crime. * * * In civil cases, it is sufficient if the evidence, on the whole, agrees with and supports the hypothesis which it is adduced to prove: but in criminal cases it must exclude every other hypothesis but that of the guilt of the party.’

In the instant case, appellant admitted that he occupied the room in question and also that the various bookmaking paraphernalia therein found belonged to him. However, he took the stand in his own defense and explained at great length that such occupancy and the presence of the paraphernalia was innocent, because he was conducting a legitimate business. On the other hand, the prosecution necessarily was forced to rely upon circumstantial evidence in its effort to establish its case. Ordinarily, it would have been a question for the jury to determine which version was true, because as stated in People v. Borrego, 211 Cal. 759, 765, 297 P. 17, 19, ‘* * * although the defendant's own story exculpates him, it is for the jury to say whether that story should be believed.’ There was nothing inherently improbable in appellant's story, and after an examination of the entire record, it cannot be said that ‘the jury could not reasonably have reconciled all of the established circumstances with the theory of [appellant's] innocence.’ People v. Hatchett, supra. Moreover, it is not improbable that a conviction would not have occurred except for the erroneous instruction. Viewed in this light, the refusal of the trial court to give the requested instruction resulted in a miscarriage of justice.

Finally appellant complains of error on the part of the trial court in its refusal to give two other instructions embodying his theory of the case. Because of the conclusions reached herein, it is not deemed necessary to discuss this point.

For the reasons stated, the judgments and order appealed from are, and each of them is, reversed.

I concur in the judgment. But, I cannot agree with the conclusion that ‘there was no error in the admission in evidence of the telephonic messages.’ In my opinion, such evidence was clearly hearsay. The argument that evidence of such conversations is not received for the purpose of establishing the truth of what was said over the telephone, but for the purpose of establishing that the room was being occupied for placing bets on horse races, as reported in People v. Joffe, supra, does no violence to the hearsay rule, is a fallacy. Obviously, unless such conversations are assumed to be true, they constitute no proof that the room was occupied for placing bets. And, if such evidence of such conversations is admitted, as above noted, for the purpose of establishing that the room was occupied for placing bets on horse races, then it was hearsay evidence received for the purpose of proving the very offense alleged and for which defendant was on trial. The argument clearly begs the question; an argument that in logic is described as circulus in probando.

YORK, Presiding Justice.

WHITE, J., concurs.