People v. Goldstein

• Decision Date: 09 February 1956
• Docket Number: Cr. 5476
• Citation: 293 P.2d 495,139 Cal. App. 2d 146
• Court: California Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Sam GOLDSTEIN, Defendant and Appellant.

Page 495

293 P.2d 495

139 Cal.App.2d 146

The PEOPLE of the State of California, Plaintiff and Respondent, v. Sam GOLDSTEIN, Defendant and Appellant.

Cr. 5476.

District Court of Appeal, Second District, Division 3, California.

Feb. 9, 1956.

Rehearing Denied Feb. 24, 1956.

Hearing Denied March 8, 1956.

Andrew R. Edwards, Pasadena, for appellant.

Edmund G. Brown, Atty. Gen., and Doris H. Maier, Deputy Atty. Gen., for respondent.

VALLEE, Justice.

Defendant was charged by information in Count I with, on February 16, 1955, unlawfully keeping and occupying a newsstand in Pasadena with papers for the purpose of recording and registering a bet or bets on horse races, Pen.Code, § 337a, subdivision 2, and in Count II with, on February 16, 1955, unlawfully having recorded and registered a bet or bets on horse races. Pen.Code, § 337a, subdivision 4. In a jury trial he was convicted as charged in both counts. He appeals from the judgment and the order denying his motion for a new trial.

In February 1955 defendant operated a magazine newsstand in Pasadena. The newsstand consisted of two rooms--a front room about 15 feet wide and 22 feet deep and a rear room directly back of that about 15 feet wide by 8 feet deep. The front room contained a candy-cigar counter and the usual racks for magazines and newspapers. The rear room contained storage shelves, a small table, boxes of magazines and newspapers, and one window covered by a torn, green blind.

On February 16, 1955 police officers Marshall and Gardner, stationed across the street, watched defendant's premises from 11:45 a. m. to 2 p. m. with glasses. During that time they saw 8 to 10 persons separately enter the front room of the building and proceed immediately to the rear room. A few seconds after a person went into the rear room, defendant followed him into the room. Ten or fifteen seconds later defendant returned to the front room, each time putting his pen into his shirt pocket. The other person then came out of the rear room and left the premises. The officers could not recall that any of the persons who went into the rear room made a purchase in the front room. They did not observe any of the individuals hand any money to defendant, take anything from him, or conduct any activity connected with what may have transpired in the rear room. The officers did not identify any one of the 8 or 10 persons; they did not stop or converse with any one of them. They did not know whether the persons who entered the building were sales people or personal friends of defendant or what connection they may have had with him.

Shortly after 2 p. m. the officers went into the newsstand. One said to defendant, 'Hi, Sam, do you mind if I look around?' Defendant said, 'Go ahead. You won't find anything here.' The two officers proceeded into the rear room. Officer Marshall testified he found a group of six papers on the framing of a partition in the rear room with a series of letters written on them; he asked defendant what they were; defendant said it was a form of double bookkeeping for the purpose of evading taxes; he asked defendant to explain; defendant said, 'I can't; you will have to talk to my lawyer.'

Officer Marshall, who qualified as an expert on bookmaking, further testified he decoded the six papers and in his opinion they were betting markers; 'I also checked as a result of breaking that down, I checked the numerals, say the fifth race, the tenth horse, I checked that against the racing sheet, the entries for Santa Anita for that particular date, and found in fact that there was a tenth horse entered in the fifth race, and so on down through the sheets.' The witness purchased a 'Daily Racing Form' of February 16, 1955 showing the horses entered at Santa Anita on that day and compared the figures on the six slips with the entries in the racing form. He further testified about the papers: 'In the 6th race, Dawn Lark was the horse in the 4th post position at Santa Anita on February 16'; in my 'opinion * * * that top entry, 6, 4, 20, indicates that was a $20 bet on Dawn Lark in the 6th race at Santa Anita' on that date; I would classify the slips of paper 'as betting markers, as part of a bookmaker's paraphernalia'; I found 'that all the betting markers were subject to the same interpretation as was put on the board there, from Exhibit No. 4'; 'I ran into a little bit of a puzzle when I found I had the 20th post position, which is an unusually large number of horses to be running; but in checking the Santa Anita entries I did find that in the 7th race they had a many as 23 horses running. The only other inconsistency would be on marker No. 6, which gave me an additional column, and I broke it down. I had just the letters 'H' or 'S' to the left of this initial column here, and that indicated to me that the 'H' was Hialeah and the 'S' would be Santa Anita. It would just be a classification of the two tracks. Where no 'S' was placed, why--it is common practice with bookmakers, and betting markers, if it is the local track, well they don't indicate by name the local track. If it is an out-of-state track, they indicate by an initial or some symbol that it is a track out of the state. And that is about the only variation I found among these six markers'; 'on one of these I found a 9th race. Now, Santa Anita only has 8 races, but Hialeah or the Fair Grounds does have a 9th race, and in checking that out I found that; I don't know whether I can dig that merker up or not, but I did find I had nine races going at Hialeah, so again that was what might have been my only stumbling block in the code and it clarified itself;' I did not 'Find any number in the second numbers which was larger than the number of horses entered in the particular race'; my 'decoding of this and the result and figures were consistent with one of the forms of keeping books used by bookmakers in this county.'

On cross-examination officer Marshall testified: when I entered the premises on February 16, 1955 I did not know what the symbols meant; I had never 'seen this particular code used in a bookmaking operation'; 'I didn't know the meaning of this particular set of symbols at this time'; defendant showed me 'one code which referred to numbers of magazines being returned to dealers' which were symbols of some kind which he explained; I did not see any one making a bet; I did not see any 'owe sheets' on the premises; an owe sheet 'is the record of the money coming to a better, or that the better owes the book'; 'a person who accepts wagers, or makes wagers, ordinarily consults a scratch sheet to see if a particular horse has been scratched'; a person who is accepting bets on horse races should check to see if 'he' [the horse] has been past posted; when a horse is scratched from a race it eliminates a post position; there was no racing digest or parlay book in the rear room; there was no date on any of the slips of paper; it is 'customary for a person who occupies premises for the purpose of taking wagers on horses to have some record regarding the results of the races or the disposition made of a particular bet'; I cannot say that any particular person placed a bet on defendant's premises; 'Q. And you don't know whether or not any of the people who went into the premises on the date you had it under surveillance made a bet there, do you, sir? A. Not any of those particular persons; no'; defendant cooperated fully when we came in and started to search the premises; I do not know when or where any of these writings were made; I do not know whether anyone placed a bet on February 16, 1955 or whether defendant accepted or registered any bet on that date; defendant told me the slips were in his handwriting; I suppose a code of this kind could be applied 'to a business operation, or purchases, and so forth.' Defendant did not testify or offer any evidence in his behalf.

The only assigned error is refusal of the court to give two instructions requested by defendant on the subject of circumstantial evidence. ¹ The argument is that the case made by the People rested chiefly on circumstantial evidence and in such a case it is prejudicial error to refuse the instructions.

The People concede that with respect to the charge in Count I, keeping and occupying the premises for the purpose of recording a bet or bets, the evidence was entirely circumstantial and that it was error to refuse the instructions as to that count. They urge the error was not prejudicial. With respect to the charge in Count II, recording a bet or bets, the People contend the evidence was not chiefly circumstantial, that the opinion evidence of the expert on bookmaking was direct evidence, and there was no error in refusing the instructions as to that count.

When the case which has been made out by the People against a defendant rests entirely or chiefly on circumstantial evidence, and in any case before the jury may find a defendant guilty basing its finding solely on such evidence, each fact which is essential to complete a chain of circumstances that will establish the defendant's guilt must be proved beyond a reasonable doubt. In a criminal case the trial court is required to instruct the jury of its own motion on the law relating to the facts of the case and on matters vital to a proper consideration of the evidence. People v Buffum, 40 Cal.2d 709, 724, 256 P.2d 317. In People v. Yrigoyen, 45 Cal.2d 46, 286 P.2d 1, 3, the rule is stated:

'In accordance with this rule we declared in People v. Bender, 27 Cal.2d 164, 174 et seq., 163 P.2d 8, that the court on its own motion should have given an instruction embodying the principle that to justify a conviction on circumstantial evidence the facts and circumstances must not only be entirely consistent with the theory of guilt but must be inconsistent with any other rational conclusion. See also People v. Koening, 29 Cal.2d 87, 93, 173 P.2d 1. It is true that in the Bender case proof of...