People v. Wilson, Cr. 3225

• Decision Date: 08 October 1956
• Docket Number: Cr. 3225
• Citation: 145 Cal.App.2d 1,301 P.2d 974
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Lonzo WILSON, Defendant and Appellant.

Page 974

301 P.2d 974

145 Cal.App.2d 1

The PEOPLE of the State of California, Plaintiff and Respondent, v. Lonzo WILSON, Defendant and Appellant.

Cr. 3225.

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

Oct. 8, 1956.

Rehearing Denied Oct. 23, 1956.

Hearing Denied Oct. 31, 1956.

Borah R. Hansen, San Francisco, for appellant.

Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., Raymond M. Momboisse, Deputy Atty. Gen., Thomas C. Lynch, Dist. Atty. of City and County of San Francisco, Philip J. Hanley, Deputy Dist. Atty., San Francisco, for respondent.

PETERS, Presiding Justice.

Defendant was charged with three violations of section 337a of the Penal Code, in that (1) he kept or occupied a place for the purpose of recording bets; (2) that he recorded bets; and (3) that he made a bet upon the result of a race. He waived a jury trial. He was convicted on counts 1 and 2, and acquitted on court 3. He appeals from the judgment of conviction.

The principal point involved on this appeal is whether the basic evidence admitted over objection was obtained by means of an illegal search of defendant and of his automobile.

The facts are not substantially in dispute. In June of 1955 a police officer, in civilian clothes, was assigned the duty of keeping a designated pool hall and adjoining restaurant under surveillance. He performed this duty from June 9th to June 30th, 1955. Each working day during this period he observed the defendant, whom he had known before he became a policeman, from about 10 a.m. to 4:30 p.m., 'loitering around the pool hall and the restaurant. Occasionally he would come in; might shoot a game of pool, but, as a general rule, he would walk into the pool hall, perhaps talk with some of the men that were there, then return to the restaurant, and sit at the counter.' While in the restaurant 'Practically each day that I would see him there, he would have the newspaper turned to the racing sheet. Men would come in and out of the restaurant, sit at the counter with him, and converse'; about 10 or 15 men would come into the restaurant each day and talk with defendant; 'Other than have a conversation together, there was nothing that I saw,' except that normally the men and defendant would look at the racing section of the paper, but he observed no one pointing toward any names in the paper, nor did he overhear any conversation, nor did he observe defendant make any notations, nor did he see any money pass between them, nor did he see defendant make or receive any telephone calls. Defendant did not appear to be working in either the restaurant or the pool hall.

Once during the period of observation the officer asked defendant if he was still working at the shipyard. Defendant said that he was not, 'that he didn't have any regular employment; that he did odd jobs, such as painting, to get the money and support himself.'

On June 30th the officer entered the restaurant and told defendant that he wanted to talk to him on police business. The defendant accompanied the officer, and outside the restaurant, by pre-arrangement, they met the police sergeant who had received the officer's daily reports. The sergeant asked defendant if he was working; defendant said that he had been out of work for about two months, and that he was supporting himself by 'doing odd jobs, painting, and anything that he could get hold of.' The sergeant thereupon placed defendant under arrest for vagrancy, and, without the permission of defendant, immediately searched defendant's person. In defendant's watch pocket the sergeant found a piece of tissue paper on which was recorded a bet placed on a horse in the 8th race at Hollywood Park that day. Defendant stated that he had placed that bet for himself with a newspaper vendor. In defendant's rear pocket was a racing form dated June 30th. In defendant's wallet was found $103 in currency, which defendant told the officers was to pay an overdue bill for the repair of his automobile. The sergeant then asked defendant where his automobile was parked, and defendant mentioned a place nearby. Then the sergeant 'told him we would like to look at the car to see what was in it,' and the defendant 'furnished us the keys, and give us--gave us permission to search his car.' The trial judge, significantly enough, when the sergeant so testified, stated 'Uncoerced, I'm sure.' The officers did not tell the defendant that he did not have to permit the search.

Upon searching the car the officers noted a large pocket on the back of the front seat. In this pocket the officers found several slips of paper and two racing forms dated June 29th and June 30th, respectively. On the slips of paper were recorded bets written in a code usually used by bookies. The defendant told the officers that these articles were not his, that he had not put them in the car and that he did not know how they had got there. No attempt was made to prove that the recorded bets were in the handwriting of the defendant.

The defendant testified that he lived with his wife next door to the restaurant; that he had known the proprietor of the restaurant for about four years; that the proprietor was repairing the establishment and had asked him, as long as he was not working, to assist her with odd jobs about the place, which he did. The proprietor of the restaurant corroborated defendant. As to the $103 found on defendant, he testified that his wife had given him $50 from her paycheck to pay an overdue repair bill on his automobile. This was corroborated by defendant's wife. Forty dollars, defendant testified, he had borrowed from his mother for the same purpose. He had intended paying the repairman $100 on a past due bill of about $166. It was stipulated that the repairman, if called, would testify that the day before defendant was arrested defendant had telephoned to him and promised to pay $100 on the bill on the 30th. This stipulation was based upon the fact that a deputy district attorney had interviewed the repairman who corroborated defendant.

The trial judge was troubled over the admissibility of the evidence found in the automobile, and the validity of the search. He was particularly troubled over the fact that the defendant was arrested for vagrancy when he obviously was suspected of and searched for evidence of bookmaking. The court admitted the evidence subject to a motion to strike, and, thereafter, the matter was argued at some length. The court finally ruled that the evidence was admissible and found the defendant guilty of recording and registering bets, and of keeping a place (his car) for that purpose, but not guilty as to count 3--placing a bet.

The only evidence that defendant recorded bets or kept a 'place' for that purpose is the evidence found in the search of the automobile. If that search was illegal, the evidence so secured was inadmissible. People v. Cahan, 44 Cal.2d 434, 282 P.2d 905. Since the decision of the Cahan case, in April of 1955, the Supreme Court has decided more than a score of cases in which it has reaffirmed the rule there stated, elaborated on it, explained it,...