People v. Foreman
| Decision Date | 08 August 1952 |
| Docket Number | Cr. 4821 |
| Court | California Court of Appeals Court of Appeals |
| Parties | PEOPLE v. FOREMAN. |
John J. Bradley and Max Solomon, Los Angeles, for appellant.
Edmund G. Brown, Atty. Gen., Norman H. Sokolow, Dep. Atty. Gen., for respondent.
Defendant was charged by information with violation of subsections 1, 2, 3 and 4 of Penal Code, § 337a. Before trial, on motion of defendant, the counts as to subsection 1 (bookmaking) and 3 (receiving, holding, or forwarding money or memoranda referring to money bet) were dismissed on motion for insufficiency of evidence under section 995, Penal Code. The cause was submitted on the transcript of the preliminary hearing, neither party offering witnesses. Defendant was found not guilty of violation of subsection 4 () but was found guilty of violating subsection 2 (). Probation was granted and defendant appeals from the order denying his motion for a new trial.
Stating the evidence most strongly in favor of the judgment of conviction the record shows: Defendant was arrested June 13, 1951, by Deputy Sheriff Lelong at the Paddock Cafe on Florence Avenue in Los Angeles. At the time of arrest defendant was at the bar in the main room of the cafe. The building contains a rear room separated by a locked door from the main room. Search of defendant's person by the deputy disclosed four slips of paper bearing names and numerals in decimal form opposite each name, a blank scratch pad of the same kind of paper, two pencils and three jackets for nickels, dimes and pennies. When asked for a key to the back room defendant denied he had one but further search revealed two sets of keys and a key on one set opened the door to the back room. Defendant stated that the key belonged to the janitor, he had only borrowed it to go to the back room to telephone his wife. There was a telephone in the main room. Lelong and defendant entered the back room and there the deputy took a sheaf of 31 slips of paper from a cardboard box. These slips were betting markers, having recorded thereon initials or nicknames of bettors, names or symbols for horses, and figures indicating bets for win, place and show. None of the horses listed was running June 13, 1951. Deputy Lelong asked defendant if any of the slips were in his handwriting and defendant replied in the negative.
Albert Leacock was also a witness at the preliminary hearing but testified to nothing that happened on June 13th nor to anything connected with a violation of section 337a(2). Furthermore, Leacock's testimony was so equivocal as to result in the dismissal of the charges under subsections 337a(1) and (3). Leacock had sworn out a complaint stating he had once given defendant a $2 bet but while testifying repeatedly stated he made a bet with another person who looked like defendant. After persistent pressure by the deputy district attorney Leacock said he placed a $2 losing bet with defendant sometime in 1951.
No attempt was made at the trial to show similarity of handwriting between that of defendant and that on the betting markers found in the back room. It must therefore be presumed that evidence on that point would have been adverse to a claim of identity or similarity.
Insufficiency of the evidence is the only ground advanced for reversal, which is sustainable only if the record shows that on no hypothesis is there evidence sufficient to support the judgment. People v. Gutierrez, 35 Cal.2d 721, 727, 221 P.2d 22. However, there must be some rational connection between the evidence presented and the inference of guilt. In considering the record of this case, a salient factor is the acquittal of the charge of recording bets and the dismissal for lack of evidence of the charges of bookmaking and receiving, holding or forwarding money or memoranda. The legislature has carved § 337a, Penal Code, into many subsections and has with great specificity set out the acts constituting a violation of the various subsections. The case of the People must stand or fall on the evidence pertaining only to the acts specified in subsection 2.
Violation of section 337a(2) is committed by even though the act denounced occurs only once. It is essential that the person charged (1) keep or occupy the room, (2...
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