PEOPLE v. WOODS (1949)

Defendant was adjudged guilty by a jury of two offenses as charged in the information. Count I alleged a violation of subdivision 3 of section 337a of the Penal Code, and Count II a violation of subdivision 2 of the same section.

Subdivision 3, in substance, declares it to be a crime to receive, hold or forward a bet on a horse race, and subdivision 2 declares it to be a crime to keep and occupy an automobile with a paper or papers for the purpose of recording a bet on a horse race. The appeal is from the judgment.

It is contended on appeal that the evidence is insufficient to support the verdict and judgment; that numerous errors occurred during the trial; that the trial was unduly prolonged by continuances; that a private conversation between the court and a member of the jury as well as a witness prejudiced defendant; that the instructions were prejudicial and that conversations between the officers and defendant were received without proof of the corpus delicti.

The record reveals that an officer saw defendant and an individual seated at a cocktail bar; one of them had a scratch sheet and the other a newspaper; that the individual, who incidentally did not appear as a witness, was seen to give defendant a dollar bill; that shortly thereafter defendant went to the 'phone booth and telephoned some one. The foregoing is the only evidence relied on to establish the offense alleged in Count I and the incident covered a period of about twenty minutes.

Following the foregoing incident, the defendant left and went to an automobile parked near by and while seated there engaged in a conversation with a ‘newsboy’, a man about fifty years old. The officer approached near enough to hear the ‘newsboy’ say to defendant, ‘Give me $2.00 to win on Secret Flight in the 8th at Tanforan’, at which time the defendant wrote something on a piece of paper. The officer further testifed:

‘Q. Did you observe the newspaper boy hand the defendant anything? A. Yes, he handed him money—folded money.

‘Q. Could you tell from where you were standing how much it was? A. It was—I observed money. The denomination of one—on one was, $1.00. I couldn't say whether it was $2.00 or $3.00 or what.’

Defendant had a so-called scratch sheet in connection with which the officer testified as follows:

‘Q. In other words, there is nothing about this document, this scratch sheet, that establishes it as being paraphernalia used only by bookmakers, is there? A. Not only by bookmakers.

‘Q. That is right. In other words, a bookmaker could use it, isn't that right? A. Yes.

‘Q. And a bettor could use it also, isn't that true? A. That is true.

‘Q. And, you know from your experience as a vice squad officer of the Los Angeles Police Department that many bettors are found in possession of these scratch sheets, isn't that true? A. Yes.

‘Q. Now, did you find any written notations of any kind whatsoever on this scratch sheet? A. No, I did not.

‘Q. You looked for them, didn't you? A. Yes.

‘Q. And, the reason that you looked for them is because you knew that as an expert on the subject of bookmaking that bookmakers, as they operate in the County of Los Angeles, commonly write down the results of races on the scratch sheet, isn't that true? A. I have seen them written down, yes, on a scratch sheet.

‘Q. Well, that is a common practice on the part of bookmakers, isn't it? A. Yes.

‘Q. You didn't find any of those notations at all, did you? A. No.’

When arrested, which was a few minutes following the conversation with the ‘newsboy’, defendant had a piece of paper upon which was written, as described by the officer, the following: ‘A. On this sheet of paper I see the numeral 8, which, in my opinion, would indicate the race—in this particular instance, the 8th race followed by the words ‘Sec Fligh’ and some scribbling. In my opinion that ‘Sec Fligh’ would indicate Secret Flight, the name of a race horse.'

The evidence for the prosecution consisted of the testimony of two police officers who in addition to the above testified to a confession by defendant.

Defendant's version of what occurred is as follows: ‘A. He came over to the left side of the machine, I am sitting behind the wheel. He showed his badge first and says, ‘Move over.’ I said, ‘What for?’ He said, ‘I am a police officer. Get over.’ So, I did. He got in and he said, ‘I saw you take that bet.’ I said, ‘Oh, no, you didn't see me take a bet.’ He says, ‘Get your stuff out of your pocket.’ I got it out and he took this paper and he says, ‘What is this?’ I said, ‘I was going to make a bet.’ He said, ‘Who on?’ I told him Secret Flight. He said, ‘Let me see this scratch sheet there.’ He took that and looked at it, and he says, ‘Who was you going to bet with?’ I hold him a fellow by the name of Buck. He says, ‘What is the phone number?‘ I gave it to him. He told me to get my stuff back in my pocket. I did. We went to jail.’

With regard to the telephone number given by defendant, the officer testified. ‘* * * I asked him the phone number where he was calling the bets.

‘Q. Without any hesitation he gave you the number, isn't that true? A. There was a little hesitation, but he gave me the number.

‘Q. When you say ‘a little hesitation’, how much of a hesitation? A. He seemed rather reluctant to give it.

‘Q. Was it more than just a few seconds? A. I don't believe it was, no.

‘Q. So, inside the space of a few seconds he gave you a phone number, right? A. That is right.

Q. You wrote the number right then, isn't that true? A. That is true.

‘Q. You subsequently investigated that phone number and satisfied yourself that it was a phone number of a bookmaker, isn't that true? A. I investigated the number two days later, as I recall.

Q. Two days later? A. Yes.'

The bookmaker did not appear as a witness.

Defendant's contentions on appeal are not without merit, but a consideration of one is sufficient. As contended by appellant the corpus delicti was not established as a matter of law in either count. That scratch sheets and racing forms are available to all is a matter of common knowledge, as well as newspapers. Talking about horse races is not a crime. The evidence upon which plaintiff relies is too far fetched to even approach the substantial.

The judgment is reversed and cause remanded for a new trial.

DORAN, Justice.

WHITE, P. J., and DRAPEAU, J., concur.