199 Cal.App.2d 866, 7494, People v. Foster

Docket Nº:7494
Citation:199 Cal.App.2d 866, 19 Cal.Rptr. 283
Opinion Judge:[10] Jefferson
Party Name:People v. Foster
Attorney:[7] Morris Lavine for Defendant and Appellant. [8] Stanley Mosk, Attorney General, William E. James, Assistant Attorney General, and Norman E. Sokolow, Deputy Attorney General, for Plaintiff and Respondent.
Case Date:February 05, 1962
Court:California Court of Appeals

Page 866

199 Cal.App.2d 866

19 Cal.Rptr. 283

The PEOPLE of the State of California, Plaintiff and Respondent,


Josephine FOSTER, Defendant and Appellant.

Cr. 7494.

California Court of Appeal, Second District, Fourth Division

Feb. 5, 1962.

Page 867


Morris Lavine, Los Angeles, for defendant and appellant.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., Norman E. Sokolow, Deputy Atty. Gen., for plaintiff and respondent.



In an information filed by the District Attorney of the County of Los Angeles, defendant was charged as follows:

In count one with violating Penal Code, section 337a, subdivision

Page 868

1, in that on or about May 12, 1960, she engaged in bookmaking and in count two with a violation of Penal Code, section 337a, subdivision 2 in that she kept and occupied an apartment for the purpose of recording and registering bets on horse racing.

Defendant pleaded not guilty. Trial was by the court, trial by jury having been duly waived by defendant and her counsel. Pursuant to stipulation of defendant and counsel the cause was submitted to the court on the testimony contained in the transcript of the proceedings had at the preliminary hearing. Defendant did not testify. Defendant was found guilty of count two and count one was dismissed on the court's motion 'in the interest of justice.' Motion for new trial was denied. On August 25, 1960, the court sentenced defendant to one year in the county jail. Sentence was suspended and probation granted for 18 months, one of the conditions of probation being that defendant spend the first sixty days of the probationary period in the county jail. Defendant prosecutes this appeal from the judgment.

Officer Robert McIntosh of the Los Angeles Police Department testified that on the morning of May 12, 1960, he received information from a confidential informant that a female person known as Jo would accept wages on horses if the officer dialed REpublic 4-1805, which telephone the informant said was located at 1216 West 37th Place in the upstairs apartment in the rear. The informant also said that this bookmaker wrote wagers on horses on large sheets of paper.

Officer McIntosh qualified as an expert in the manner and means in which bookmaking was conducted in the County of Los Angeles, including the signs, symbols and paraphernalia used therein. He testified that on the afternoon of May 12, three police officers went to the rear of 1216 West 37th Place, Los Angeles, arriving at 4:00 p. m. There was a two-story apartment house on the premises. Officer McIntosh approached the premises through the alley. The second story of the apartment building was overhanging the rear about 20 feet. This overhang area was used partially as a carport. There were four 50-gallon drum trash pails against the front wall of the carport under the overhang near the west side of the building.

Officer McIntosh examined the contents of the trash pails. From one he recovered a brown paper sack. Among the items he found therein were a National Daily Reporter dated May 9, 1960, two sheets of white paper about eight by fourteen inches,

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a torn envelope with a Maryland address and handwriting, and postcard mailed from the Health Department, City of Los Angeles, addressed to Josephine Foster, 1216 West 37th Place, Apartment 7, Los Angeles 7.

Officer McIntosh testified he found ink notations on the front and back of the envelopes. Among the notations were the number 6 and the words 'Paint Brush,' then the words 'Aqueduct' the number 7, and the words 'Mommen Dear.' In Officer McIntosh's opinion, he testified, these notations comprised a list of selections that a person had made of horses running at Aqueduct on an ungiven date, which horses were named Paint Brush and Mommen Dear. The officer testified he found about five other similar notations of selections on the envelope, which he interpreted as the names of horses and the tracks and numbers of the races in which the particular horses were running. He testified that in his opinion, such notations were written by a bettor.

Officer McIntosh further testified that he observed certain ink notations on the two sheets of paper which appeared to be telephone numbers and 'doodling', and the words Mrs. Foster. On the back of one sheet where it read 'Mrs. Foster', the officer said he found the word 'Jo', the numerals and letter 5182 XI. Under these notations he testified he found the numerals and letters 5811XX and under these the notation 400. Officer McIntosh testified that in his opinion, these symbols constituted the recordation of a wager by a person identified by the name of Jo, in which the person had...

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