People v. Flanders
| Decision Date | 16 April 1956 |
| Docket Number | Cr. 3158 |
| Citation | 140 Cal.App.2d 765,296 P.2d 13 |
| Court | California Court of Appeals Court of Appeals |
| Parties | The PEOPLE of the State of California, Plaintiff and Appellant, v. Halford T. FLANDERS, also known as Ralph Flanders, Defendant and Respondent. |
Joseph C. Haughey, San Francisco, for respondent.
Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., Raymond M. Momboisse, Deputy Atty. Gen., for appellant.
This is an appeal by the People from an order of the Superior Court in and for the City and County of San Francisco, dismissing the indictment against respondent Flanders.
On May 2, 1955, respondent Halford T. Flanders was by indictment of the Grand Jury of the City and County of San Francisco charged with violation of section 182 of the Penal Code, conspiracy to violate section 288 of the Police Code of the aforesaid City and County (maintaining a gambling house.) He was arraigned on May 9, and on May 16, 1955, he moved to set aside the indictment under section 995, Penal Code, alleging that said indictment was not properly endorsed and presented as prescribed by the Penal Code, and that he was indicted without reasonable or probable cause, in that no evidence was presented showing the commission of any offense by respondent or establishing reasonable or probable cause for believing that he committed any offense.
Early in the morning of Saturday, April 23, 1955, the police raided a North Beach social club at 209 Stevenson Street, San Francisco. There were nine round tables in the club covered with green felt. The tables were surrounded by groups of men who had before them on the tables playing cards and chips. Respondent Flanders identified himself to police as the proprietor of the club. He also identified August Watke at the first table as the house man. There were red, white and pink chips on this table as well as cards in front of the players. There was a pot in the center of the table. Officer Nelder testified that from the position of the cards, it appeared to him that the game in progress was draw poker. The dealer in the officer's presence, drew in the chips and paid off the players in amounts varying from $17.40 to $10.35. Watke told the officer that the red chips were worth 25 cents, the white chips, 5 cents, and the pink chips, one dollar. He also said that he charged each player 2k also said that he charged each player 25
At the third table, a game of panguingui, also a gambling game, was being played for money. George Kondos paid off the players at this table. He was also identified by respondent as one of his dealers. He stated that Watke took care of the front portion of the establishment and Kondos of the southerly portion.
Inspector Cruickshank testified in similar vein, and identified gambling paraphernalia seized in the raid of respondent's establishment.
Respondent refused to testify on the ground that his answers might incriminate him.
It is appellant's contention that a constitutional question cannot be raised under section 995 of the Penal Code, and that the court erred in holding that it was a denial of equal protection of the law to prosecute some while others escaped prosecution for breaking the same laws. The respondent's motion was based on the ground that there was no evidence before the Grand Jury that this respondent conspired with unnamed other persons to violate the anti-gambling ordinance. The trial judge remarked that after reading the transcript he found it difficult to ascertain with whom defendant was supposed to have conspired, and the prosecuting attorney pointed out that the dealers were in some type of contact with the operator or proprietor. After further discussion of the evidence required to constitute a conspiracy the court stated that his reason for dismissing the conspiracy charge was aside from that, stating that he could take judicial notice of the fact that similar offenses were practiced widespread in San Francisco referring to church 'bingo' lotteries which were allowed to run without interference and which were even advertised. He cited the case of Yick Wo v. Hopkins, 118 U.S. 356, 6 S.Ct. 1064, 30 L.Ed. 220, to the effect that if the law is administered so as to make unjust and illegal discriminations between persons in similar circumstances, the denial of equal justice is within the constitutional prohibition.
The court admitted that the record before the Grand Jury did not show that other forms of gambling were being conducted widespread throughout San Francisco in practically every parish. No proof was offered by respondent either at the hearing or before the Grand Jury that there was discrimination practiced in the enforcement of the gambling laws. This issue was interjected by the court. The court stated that he could take judicial notice of the fact that such offenses were practiced by church organizations and were even advertised.
Respondent cites abundant authority to the effect that it is immaterial that the trial court reached its conclusion through an erroneous process of reasoning if it arrived at a correct judgment, Sears v. Rule, 27 Cal.2d 131, 140, 163 P.2d 443; Kuhn v. Ferry and Hensler, 91 Cal.App.2d 805, 810, 206 P.2d 1; 4 Cal.Jur.2d 390-391, and contends that the record shows discrimination in that if respondent was guilty of a violation of the Municipal Code, the dealers Kondos and Watke were 'particeps criminis', but respondent was indicted for a felony while the two dealers were not named in the indictment.
In 1949, section 995, Penal Code was amended to permit an indictment to be set aside if defendant has been indicted without reasonable or probable cause. Prior to that time only an information could be set aside under that section for that reason. Undoubtedly, the cases decided under that section relating to the setting aside of an information for lack of reasonable or probable cause should be followed in principle in regard to cases involving indictments. The test as laid down in People v. Platt, 124 Cal.App.2d 123, 268 P.2d 529, is that an information should be set aside only where there is no evidence that a crime has been committed or no evidence to connect defendant with such crime. On a motion to set aside an information, the court may not substitute its judgment as to the weight of the evidence for that of the magistrate conducting the preliminary examination. On such a motion the court will not inquire into the sufficiency of the...
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