People v. Fox

• Decision Date: 15 July 1954
• Docket Number: Cr. 2935
• Citation: 126 Cal.App.2d 560,272 P.2d 832
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE v. FOX.

Page 832

272 P.2d 832

126 Cal.App.2d 560

PEOPLE v. FOX.

Cr. 2935.

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

July 15, 1954.

Rehearing Denied July 30, 1954.

Hearing Denied Aug. 10, 1954.

Joseph C. Haughey, Toland C. McGettigan, San Francisco, for appellant.

Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., Wm. K. Coblentz, Dep. Atty. Gen., for respondent.

DOOLING, Justice.

Appellant was charged in one indictment (No. 46,039) jointly with certain occupants of Room 417 of the Graystone Building at 948 Market Street in San Francisco in four counts. Count 1 charged a conspiracy of the defendants to violate section 337a, Penal Code. Count 2 charged the defendants with the substantive offense of pool selling and bookmaking on or about June 23, 1951 (a violation of subd. 1, section 337a, Pen. C.). Count 3 charged a violation of subd. 2 of that section on or about the same day (keeping and occupying rooms located at 948 Market Street with books, papers and other paraphernalia for the purpose of recording and registering bets). Count 4 charged a violation of subd. 4 of section 337a on the same date (recording and registering bets). For convenience this indictment will hereafter be called the joint indictment.

Appellant was also charged in a separate indictment in which he was the only defendant (No. 46,042) with violations of subdivisions 1, 2, 4 and 5 of section 337a. These offenses were charged also as occurring on or about June 23, 1951 in Rooms 306 and 307 of the same building. This indictment will hereafter be called the separate indictment.

The other defendants charged with appellant in the joint indictment all pleaded guilty to the substantive offense charged in Count 3 thereof. Thereafter on motion of the district attorney the remaining counts of the joint indictment were dismissed as to all defendants except the appellant.

The two indictments were consolidated for trial and the jury returned verdicts finding appellant guilty as charged in all counts of both indictments. The court granted a new trial on Count 1 of the joint indictment (the conspiracy charge) but denied appellant's motion for new trial on all other counts of both indictments. The judgments provide that the sentences on all counts shall run concurrently.

The evidence showed that on June 23, 1951 after a meeting in the district attorney's office with Thomas C. Lynch, district attorney and Harold Robinson, deputy director of the California Department of Justice, Thomas P. Judge, special agent of the State Department of Justice went to the Graystone Building accompanied by Frank Brown, an assistant district attorney of San Francisco. The two of them proceeded to the third floor of the building and tapped on the door of room 306 with a key. There was no answer to their knocking so they waited about four minutes. They heard a noise inside and identifying themselves as police officers they broke the glass of the door in order to open it.

No one was in room 306 but there was a locked door leading to room 307. Therefore they returned to the hall and broke the glass of the door to room 307. A small corridor led to another door which in turn led to room 307. This door was opened by a man later identified as the appellant. He was in his shirt sleeves and his coat was hanging in a closet.

The room contained a table, two chairs, three telephones, an adding machine, a radio, a clock and a wastepaper basket. The radio dial was set at 1300 and race results were coming in on the radio. There was also found a daily racing form dated June 23, 1951, and a pad with various lines drawn thereon and handwriting on the top sheet. Scraps of paper were found in the wastepaper basket and pieced together. Also found in the room were colored pencils, adding machine tape, totals which corresponded to totals computed from the figures on the scraps of paper pieced together, a key which opened the door to room 417 in the same building, and a piece of paper on the desk with the same numerical notations on it as a piece of paper found in the wastebasket.

When asked what he was doing in the room appellant explained that he was a bettor and that he was there to get tips on the horses. He stated that a Mr. Roger Hill was the bookmaker but had stepped out to lunch fifteen minutes before. Appellant had been there for 45 minutes. Appellant admitted that two different parties called to place bets while he was there but said that he did not record them. During the time that Judge and Brown were there the phone rang several times and Judge answered about 14 calls. Each time the person on the line asked for 'Abe'. When Judge replied, 'This is Abe' the calling party would hang up. One caller asked for 'Curley Top'. Appellant stated the call was for him and talked to the party for several minutes. After hanging up he identified the caller as his wife. There was also a long distance call from Reno and the party asked for 'Abe'. When Judge answered, 'This is Abe' the party hung up.

At the same time that Judge and Brown were in room 307 Ernest Wenberg, a special agent of the State Department of Justice and Cecil Poole, an assistant district attorney, went to room 417 of the same building. They tapped on the glass door with a coin and the door was opened by James Cernusco. Upon entry Wenberg identified himself and immediately announced that the persons present were under arrest. There were four men in room 417. In addition to Cernusco, there was a John Gregory standing near the door; an Alphonse Vella seated at a desk against the north wall; a William Mendello was standing near a hot plate and a radio on the south wall. There were two more men in room 418. A Nick De Melio and Jack Cohen were seated at a table. In room 417 there was a table against the north wall, two telephones, two chairs at the table, two separate sets of bookmaking paraphernalia, a hot plate with a coffee percolator and a radio. In room 418 there were six telephones, a radio, electric clock, filing cabinets, strong box, adding machine, and some separate sets of bookmaking paraphernalia. A key was found in a strong box in room 418 which opened the lock on the door to room 307. While Wenberg and Poole were in room 417 the elevator operator of the building came to warn the occupants of room 417 that the offices downstairs were being raided. Wenberg testified that he answered all the telephones for two hours and that the parties calling would either ask for a particular individual or identify themselves by what appeared to be nicknames and immediately start reading off bets either by the rundown number of the horses or by actually naming the horses that were running at the tracks.

Russell Miller, an accountant employed by the managers of the building at 948 Market Street during the period from January to July 1951, testified that he collected the rent once or twice for rooms 306 and 307 from appellant and the latter had requested Miller to remove a partition cutting in half the office in room 307. Appellant also informed Miller where he wanted the telephones placed if the telephone man came in in his absence. Appellant asked Miller to come to room 307 to pick up some insurance papers and appellant also paid the rent at that time. Miller stated that the bills were made out to Roger Hill, but the only one from whom Miller collected rent was appellant. An index card bearing the notation, 'Abe Sutter 1-3764' which was the number of one of the telephones in room 307 was filed in the offices of Klinger & Lichtman, the lessees of the office space in the building.

Inspector Marion C. Overstreet of the San Francisco Police Force had been attached to the vice squad for six years and was qualified as an expert in bookmaking cases. Over strong objection he testified that he had arrested appellant in 1946 and at that time Fox said he was a visitor and not a bookmaker at the premises. The inspector testified that the handwriting pad found in room 307 could be used to record bets. He interpreted some markings on the pad to mean that $150 was bet on a horse to win bearing rundown number 33. The straight line drawn through the column on the extreme right indicated that the horse had lost the race. Scraps of paper found in the wastebasket and pieced together were shown to the witness, and he stated the figures indicate it was a betting sheet. The figures and the names on the sheet were interpreted by the witness to represent amounts of money owed or due from certain individuals. The difference between the collect and pay column amounted to $1836. The amount was found on another piece of paper and had evidently been carried over to the betting sheet for the following day. According to testimony of an expert witness all of the above documents were in appellant's handwriting.

Betting sheets were found in room 417 with the name 'Abe' on them. These were described as lay off sheets showing to whom the bets were spread in order to distribute the risk among various individuals. The expert witness demonstrated by mathematical computation how certain figures on the document found in room 417 were determined and that it indicated these were lay off bets made by appellant to the bookmakers in room 417.

Mario Peruzzo testified that he worked as a bookmaker in rooms 417 and 418 within a month prior to June 23, 1951. He testified that appellant telephoned room 417 several times and usually identified himself by stating 'This is Abe calling.' If appellant wished to talk about a bet Peruzzo would turn the call over to some one else in the room. He stated that the betting sheets found on June 23, 1951 in room 417 with the name 'Abe' above the record of certain wagers referred to bets made by appellant.

Appellant's first point is that when all of the other defendants named in the joint indictment pleaded guilty and the court dismissed the other counts against them the other defendants could no longer...