People v. Foster, Cr. 7494

• Court: California Court of Appeals
• Citation: 199 Cal.App.2d 866,19 Cal.Rptr. 283
• Decision Date: 05 February 1962
• Docket Number: Cr. 7494
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Josephine FOSTER, Defendant and Appellant.

Page 283

19 Cal.Rptr. 283 199 Cal.App.2d 866 The PEOPLE of the State of California, Plaintiff and Respondent,
v.
Josephine FOSTER, Defendant and Appellant. Cr. 7494. District Court of Appeal, Second District,
Division 4, California. Feb. 5, 1962.

Page 284

[199 Cal.App.2d 867] Morris Lavine, Los Angeles, for defendant and appellant.

Stanley Mosk, Atty. Gen., William E. James, Asst. Atty. Gen., Norman E. Sokolow, Deputy Atty. Gen., for plaintiff and respondent.

JEFFERSON, Justice.

In an information filed by the District Attorney of the County of Los Angeles, defendant was charged as follows:

In count one with violating Penal Code, section 337a, subdivision[199 Cal.App.2d 868] 1, in that on or about May 12, 1960, she engaged in bookmaking and in count two with a violation of Penal Code, section 337a, subdivision 2 in that she kept and occupied an apartment for the purpose of recording and registering bets on horse racing.

Defendant pleaded not guilty. Trial was by the court, trial by jury having been duly waived by defendant and her counsel. Pursuant to stipulation of defendant and counsel the cause was submitted to the court on the testimony contained in the transcript of the proceedings had at the preliminary hearing. Defendant did not testify. Defendant was found guilty of count two and count one was dismissed on the court's motion 'in the interest of justice.' Motion for new trial was denied. On August 25, 1960, the court sentenced defendant to one year in the county jail. Sentence was suspended and probation granted for 18 months, one of the conditions of probation being that defendant spend the first sixty days of the probationary period in the county jail. Defendant prosecutes this appeal from the judgment.

Page 285

Officer Robert McIntosh of the Los Angeles Police Department testified that on the morning of May 12, 1960, he received information from a confidential informant that a female person known as Jo would accept wages on horses if the officer dialed REpublic 4-1805, which telephone the informant said was located at 1216 West 37th Place in the upstairs apartment in the rear. The informant also said that this bookmaker wrote wagers on horses on large sheets of paper.

Officer McIntosh qualified as an expert in the manner and means in which bookmaking was conducted in the County of Los Angeles, including the signs, symbols and paraphernalia used therein. He testified that on the afternoon of May 12, three police officers went to the rear of 1216 West 37th Place, Los Angeles, arriving at 4:00 p. m. There was a two-story apartment house on the premises. Officer McIntosh approached the premises through the alley. The second story of the apartment building was overhanging the rear about 20 feet. This overhang area was used partially as a carport. There were four 50-gallon drum trash pails against the front wall of the carport under the overhang near the west side of the building.

Officer McIntosh examined the contents of the trash pails. From one he recovered a brown paper sack. Among the items he found therein were a National Daily Reporter dated May 9, 1960, two sheets of white paper about eight by fourteen inches, [199 Cal.App.2d 869] a torn envelope with a Maryland address and handwriting, and postcard mailed from the Health Department, City of Los Angeles, addressed to Josephine Foster, 1216 West 37th Place, Apartment 7, Los Angeles 7.

Officer McIntosh testified he found ink notations on the front and back of the envelopes. Among the notations were the number 6 and the words 'Paint Brush,' then the words 'Aqueduct' the number 7, and the words 'Mommen Dear.' In Officer McIntosh's opinion, he testified, these notations comprised a list of selections that a person had made of horses running at Aqueduct on an ungiven date, which horses were named Paint Brush and Mommen Dear. The officer testified he found about five other similar notations of selections on the envelope, which he interpreted as the names of horses and the tracks and numbers of the races in which the particular horses were running. He testified that in his opinion, such notations were written by a bettor.

Officer McIntosh further testified that he observed certain ink notations on the two sheets of paper which appeared to be telephone numbers and 'doodling', and the words Mrs. Foster. On the back of one sheet where it read 'Mrs. Foster', the officer said he found the word 'Jo', the numerals and letter 5182 XI. Under these notations he testified he found the numerals and letters 5811XX and under these the notation 400. Officer McIntosh testified that in his opinion, these symbols constituted the recordation of a wager by a person identified by the name of Jo, in which the person had wagered $2.00 to win and $1.00 to place on a horse with the inder number 518, also a further wager of $1.00 to win on a horse with the index number 581, on an unknown date. The 400 represented the total amount of money wagered in that instance.

Officer McIntosh further testified that after finding the items within the brown paper bag in the trash pail he went to a telephone located near the premises and dialed the aforementioned number REpublic 4-1805. He further testified that he had previously checked out the number with the telephone company and found it was registered to Apartment 7 at the address in question, although not listed to defendant. Officer McIntosh testified that after dialing the number, he had a conversation with a female voice at the other end of the line. In the conversation he attempted to place a wager on horses running for the day but was unsuccessful in doing so.

[199 Cal.App.2d 870] Officer McIntosh further testified he terminated the conversation and proceeded

Page 286

immediately to Apartment 7 at that address. He looked through an open peep-hole in the middle of the front door but was unable to observe anyone within the apartment. He was able to hear, however, a sound which he interpreted as that of running feet, the slamming of a door and rapid movement from within the apartment. He rang the doorbell twice but received no answer. He testified he forced entry and observed defendant standing in the hallway, about 15 feet from the front door. From the time of his arrival at the rear of the location until his entry into Apartment No. 7, Officer McIntosh testified he did not see anyone nor did any of the other officers tell him of having seen anyone leave the location.

Officer McIntosh further testified that in looking past defendant, he observed in the right rear bedroom a card table, two racing sections from daily newspapers, a racing parlay manual, a stack of 'tout sheets', a telephone, two pens and an electric computing machine situated at the side of the card table in such a manner that a person sitting there could use the machine. Officer McIntosh testified that he observed in the bathroom a telephone laying on the commode, the telephone number of which proved to be RIchmond 5-1805. This telephone was off the hook.

The two racing sections were from the Los Angeles Times and the Mirror-News, and were dated for that day May 12, 1960. They were lying on the card table in the rear bedroom. The 'tout sheets' were also lying on the card table and consisted of nine Turf Flash publications for various dates. In the front room twelve National Daily Reporters for various dates were recovered from within a stack of newspapers as well as some 60 sheets of paper which had ink notations thereon. One of these National Daily Reporters, was dated May 12, 1960. It contained a green sheet of paper, a pink sheet of paper, and three white sheets of paper, all of which were approximately 9 by 15 inches and contained ink notations.

Officer McIntosh...