People v. Burch, Cr. 4946

• Decision Date: 26 May 1953
• Docket Number: Cr. 4946
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE v. BURCH.

Page 44

257 P.2d 44

118 Cal.App.2d 122

PEOPLE v. BURCH.

Cr. 4946.

District Court of Appeal, Second District, Division 2, California.

May 26, 1953.

Edmund G. Brown, Atty. Gen., Ellis Peter Miller, Deputy Atty. Gen., for respondent.

Gordon, Schaffer & Lang and Walter L. Gordon, Jr., Los Angeles, for appellant.

McCOMB, Justice.

From an order denying defendant's motion for a new trial after a judgment of guilty of violating (a) subdivision 1 of section 337a of the Penal Code (poolselling and bookmaking) and (b) subdivision 6 of section 337a of the Penal Code (accepting a bet) following trial before the court without a jury, defendant appeals.

Viewing the evidence as we must in the light most favorable to the people (respondent) the record discloses that on May 30, 1952, two Los Angeles police officers observed defendant in front of a barbershop conversing with two men and consulting a newspaper. Shortly after the discussion defendant entered a public telephone booth located outside of the barbershop and made a telephone call. On leaving the telephone booth he reapproached the two men and nodded his head, whereupon the two men left.

Shortly thereafter the police officers observed defendant talking with two women seated in an automobile in front of the barbershop. Defendant had been seen to consult a newspaper and hand it back to the women immediately prior to his entering the telephone booth. He then returned to the car and one of the officers heard the woman behind the wheel say, 'Give me two dollars to win on Willow Way in the first race at Hollywood Park.' Defendant stated, 'O.K.' The passenger in the car then stated to defendant, 'And give me one dollar to win on Red Bachelor in the first race at Hollywood Park.' As the women started to place some money in defendant's hand they observed one of the officers standing behind defendant and immediately replaced the money in their pockets. Thereupon the officers identified themselves and took from defendant's hand a copy of the Los Angeles Daily News, dated May 30, 1952. The paper was turned to the sports section containing the Hollywood Park handicap. The officers found upon examining a National Daily Reporter scratch sheet that bot Willow Way and Red Bachelor were running in the first race at Hollywood Park on that date.

At the trial, after qualifying as an expert, one of the officers testified that the conversation which had been overheard between defendant and the women in the automobile disclosed a form of oral bookmaking which was typical in Los Angeles. He also testified that, 'Two dollars to win on Willow Way in the first at Hollywood Park' meant a two- dollar bet placed on a horse to win in the first race at Hollywood Park and gave a similar interpretation of the statement alluding to 'Red Bachelor in the first race at Hollywood Park.'

After defendant's motion for a new trial was denied, defendant was placed on probation for a period of five years, the first six months of the probationary period to be spent in the County Jail.

Questions: First: Was there substantial evidence to sustain the finding that defendant was guilty of a violation of section 337a, subdivision 1, of the Penal Code?

Yes. Subdivision 1 of section 337a of the Penal Code reads in part as follows: 'Every person, 1. Who engages in * * * book-making, with or without writing, at any time or place * * * Is punishable by imprisonment in the county jail or state prison for a period of not less than thirty days and not exceeding one year.' The provision quoted states clearly that the offense of bookmaking can take place without a writing. There is no requirement that the bet be recorded. For a case under an identical statute, directly in point, see People v. Busco, Sp.Sess., 46 N.Y.S.2d 859, where, at page 868 the court says: '* * * Under the old decisions, it was necessary that a writing be made. The term itself implies that some written memoranda be used. However, the Legislature, in order to cope with the clever devices and subterfuges employed, amended the section and gave a new meaning to the word bookmaking. * * * It is clear, therefore, that oral bookmaking is an much a violation of the statute as is written bookmaking. In view of the express mandate of the Legislature, in giving a new definition to the term 'bookmaking,' many of the opinions rendered by our courts must now be disregarded.' Clearly from the facts set forth above defendant engaged in bookmaking, a violation of subdivision 1 of section 337a of the Penal Code.

Second: Was there substantial evidence to sustain the finding that defendant was quilty of violating subdivision 6 of section 337a of the Penal Code?

Yes. Section 337a of the Penal Code reads in part as follows: 'Every person, * * * 6. Who * * * offers or accepts any bet or bets, or wager or wagers, upon the result, or purported result, of any trial, or purported trial, or contest, or purported contest of skill, speed or power of endurance of...