People v. Demery

• Decision Date: 21 December 1960
• Docket Number: Cr. 7096
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE of the State of California, Plaintiff and Respondent, v. Ed DEMERY, Defendant and Appellant.

Page 135

10 Cal.Rptr. 135

187 Cal.App.2d 613

PEOPLE of the State of California, Plaintiff and Respondent, v. Ed DEMERY, Defendant and Appellant.

Cr. 7096.

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

Dec. 21, 1960.

Harry E. Weiss, Los Angeles, for appellant.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., Robert M. Sweet, Deputy Atty. Gen., for respondent.

HERNDON, Justice.

In two informations filed by the District Attorney of Los Angeles County, appellant was charged with three separate violations of Penal Code, § 337a (bookmaking) in that: (1) on March 24, 1959, appellant recorded a bet in violation of subdivision 4 of said section; (2) that on March 28, 1959, appellant violated subdivision 2 by keeping or occupying a place with paraphernalia for recording bets; and (3) that on March 28, 1959, appellant recorded a bet in violation of subdivision 4 of said section.

The charges contained in the two informations were consolidated for trial, jury trial was waived, and the cause was submitted to the court on the transcript of the evidence received at the preliminary hearing. Appellant was found guilty on all three charges, and he now appeals from the judgment of conviction.

Appellant's primary contention is that the evidence against him was obtained as the result of an illegal search and seizure, and was therefore improperly received at the trial. This contention is wholly devoid of merit for the sufficient reason that no objection was interposed at the trial to the admission of any of the incriminating evidence. No question of illegal arrest, search or seizure was raised in the trial court. It is settled law that such objection cannot be raised for the first time on appeal. People v. Richardson, 51 Cal.2d 445, 447, 334 P.2d 573; People v. Goldberg, 152 Cal.App.2d 503, 572, 314 P.2d 151; People v. Williams, 148 Cal.App.2d 525, 532, 307 P.2d 48.

Appellant's second major contention is that the evidence is insufficient to sustain his conviction. A recital of the evidence favorable to the prosecution will suffice to demonstrate the lack of merit in this contention.

Officer Robert B. McIntosh of the Los Angeles Police Department testified that on March 24, 1959, he and another officer were investigating vice conditions in the vicinity of 1375 East Vernon. In the course of this investigation, they entered appellant's premises, a one-story brick building housing a domino parlor at the above address. Upon entering appellant's establishment the officers observed seven men seated at a table in the front room playing dominos. The officers then proceeded into the rear room, and observed approximately six other persons seated around a table studying National Daily Reporters and daily racing forms. A radio was broadcasting racing information and results.

At this point, appellant stepped from behind a partition in the rear room and asked if the officers were looking for him. Officer McIntosh replied in the affirmative and walked toward the appellant to engage him in conversation. As he approached appellant the officer noticed a small piece of white paper on the floor about twelve inches from appellant's left foot.

It was stipulated that Officer McIntosh was an expert in bookmaking activities and paraphernalia commonly used in Los Angeles County. In reference to the piece of paper found by appellant's foot, Officer McIntosh testified that he recognized it as 'a betting marker, a wager on the horses'. The officer further testified that in his opinion the numbers and letters appearing on the paper represented and recorded two different wagers on horse races.

After Officer McIntosh had recovered the paper from the floor, he asked appellant what it was. At first appellant denied that the paper was his. After some further conversation, however, appellant stated that he had the paper in his coat when the officers entered and that he had thrown it on the floor because he thought it was a betting marker. He then proceeded to explain that it was not actually a betting marker but a record of...