People v. Castaldia, Cr. 6351

• Decision Date: 10 February 1959
• Docket Number: Cr. 6351
• Citation: 51 Cal.2d 569,335 P.2d 104
• Court: California Supreme Court
• Parties: The PEOPLE of the State of California, Respondent, v. Joseph CASTALDIA, Appellant.

Page 104

335 P.2d 104

51 Cal.2d 569

The PEOPLE of the State of California, Respondent, v. Joseph CASTALDIA, Appellant.

Cr. 6351.

Supreme Court of California, In Bank.

Feb. 10, 1959.

David A. Fall and Kenneth W. Gale, San Pedro, for appellant.

Edmund G. Brown, Atty. Gen., and Carl Boronkay, Deputy Atty. Gen., for respondent.

McCOMB, Justice.

Defendant appeals, after a jury trial, fron (1) a judgment finding him guilty of accepting a bet on a horse race, contrary to the provisions of section 337a, subdivision 6, of the Penal Code, and (2) an order denying his motion for a new trial.

Facts: During the voir dire examination of the jury, juror Angela R. Kennedy, in response to questions of defendant's counsel, stated that there was nothing in nature of a bookmaking case to cause her to hesitate to sit as a juror; that if some of the evidence took place in a bar it would not prejudice her in any manner; that she would not suffer herself to be biased against defendant; that she would consider the case solely on the evidence; and that she felt she could keep a free and open mind until all the evidence was in.

During the voir dire examination of juror James Russell, he stated that the fact that the case might involve gambling or that some of the events might have taken place in a barroom would not prejudice him and that he would answer the questions asked Mrs. Kennedy the same way she had.

A verdict finding defendant guilty was returned on May 22, 1957. He made a motion for a new trial, and in support of his motion for a new trial filed three affidavits.

One was by his counsel, reciting that on July 8, 1957, Angela R. Kennedy, one of the jurors who heard the case and returned the verdict, had related the following facts to him: During her service as a juror on the case, she commuted from her home to court and returned by bus. In returning to her home from court she transferred at Sixth Street and Harbor Boulevard in San Pedro. After transferring at that point at the close of the first day of the trial and while waiting for the bus to depart, she had a conversation with the bus driver, named Joe, with whom she had been acquainted for more than ten years. During the conversation she told him she was a juror in a bookmaking case, the defendant was Joseph Castaldia, the case arose out of bets allegedly made in January 1957 at the Bamboo Hut and Bank Cafe in San Pedro, and she was going to stop at those establishments some time and find out what kind they were. The driver told her there were a great many bookmakers at almost any establishment in the area and that during January 1957 the police had arrested a number of bookmakers there. She told affiant she did not remember the exact number of bookmakers the driver told her had been arrested, but she believed it was either 14 or 17.

A second affidavit, by Joseph Gualeni, was offered, wherein he stated the following facts: He was a bus driver and had been acquainted with Angela R. Kennedy for 15 years. During May 1957 he had a conversation with her in his bus while it was waiting to commence a scheduled run. She asked him if he knew the exact location of the Bamboo Hut. He told her he was uncertain of its exact location, but he believed it was on Sixth Street in San Pedro just west of the Bank Cafe. She told him that the 'bookie' involved in the case in which she was sitting as a juror was some one from San Pedro who was picked up in that area, that the case involved the Bamboo Hut, and that she was going to take a look at it some time. Near the end of the conversation, Mrs. Kennedy stated 'that she had no respect for bookmakers and that she wished they would throw the book at all of them and put all of them away * * * that the defendant in the case, on which she was then presently sitting, as a juror, didn't have a chance that the jury on which she was then sitting was going to throw the book at him on the following morning.' On occasions and dates prior to the above conversation, when the subject of gambling was mentioned on the bus, she stated in his presence that she disliked gambling and persons who gambled.

In the third affidavit, the affiant, Charles W. Eddy, one of the jurors in the case, stated the following facts: After the case was argued and given to the jury and during the discussions and balloting, juror Angela R. Kennedy had stated that there was not enough evidence to convict the defendant but she just could not turn him loose; that she was throughly familiar with the area in which the Bank Cafe was situated; that at every shoeshine stand, cigar stand or newsstand, one could buy a scratch sheet and place a bet anywhere. After about the third ballot, James Russell, foreman of the jury, stated that he could explain bookmaking to the other jurors. Mr. Russell stated that he knew a great deal about bookmaking for he had in fact lost his house to a bookmaker, and he thereafter spent approximately fifteen minutes explaining to the other jurors the use of a scratch sheet, the manner of making bets, and various means of gambling.

There was no contradiction of the foregoing facts.

Affidavits by defendant and his counsel disclosed that...