People v. Gompertz

• Decision Date: 28 March 1951
• Docket Number: Cr. 748
• Citation: 103 Cal.App.2d 153,229 P.2d 105
• Court: California Court of Appeals Court of Appeals
• Parties: PEOPLE v. GOMPERTZ et al.

Page 105

229 P.2d 105

103 Cal.App.2d 153

PEOPLE v. GOMPERTZ et al.

Cr. 748.

District Court of Appeal, Fourth District, California.

March 28, 1951.

Rehearing Denied April 6, 1951.

Hearing Denied April 26, 1951.

Edgar B. Hervey, San Diego, Henry F. Walker, Los Angeles, for appellants.

Edmund G. Brown, Atty. Gen., Donald D. Stoker, Deputy Atty. Gen., James Don Keller, Dist. Atty., John Robert Sorbo, Deputy Dist. Atty., San Diego, for respondent.

GRIFFIN, Justice.

Defendants Laurence K. Gompertz and Leonard Brophy were convicted of the crime denounced by section 337a, subd. 2, Penal Code. No judgment was pronounced nor sentence imposed. They were granted conditional probation and now appeal from the order denying a new trial. Defendants' main contention is that the evidence produced was insufficient to establish that they occupied the place with books, papers, or paraphernalia for the purpose of recording or registering bets upon the results of horse races.

The arresting officers testified generally that they went to a store building located at 2975 National Avenue; that one small room therein was occupied by these defendants; that an adjoining storeroom was occupied by the 'Circus Cafe'. Defendants did not testify at the trial. The evidence shows that they occupied the room at the time, but they urge that it was used merely for the purpose of engaging in the making and distribution of mimeographed 'run-down' or 'scratch' sheets, a legal business enterprise.

Brophy first rented the room in July, 1949. A mail box was placed at the office door (the only entrance to the room) giving the address as 2977 and the name 'J. Saunders Products', 'Donovan Elec. Supply'. In August, 1949, application was made under the name 'James Donovan' for a phone. It was listed as 'Donovan Electrical Appliance' at 2977 National Avenue. There were no signs on or at the store building indicating that defendants were engaged in the electrical business. The only window in the room was obscured by a covering.

An investigator testified that he made diligent inquiry in regard to the 'Donovan Electrical Supply Co.' but was unable to find any record or information as to its actual existence or operation. No search was made as to the 'J. Saunders Products Co.' When the officers raided the place on July 21, 1950, about 8:20 a. m. defendants Brophy and Gompertz were standing directly opposite the mimeograph machine and were operating it. Three other persons were in the room, including one Gene Baehr. Two tables were found. One held the mimeograph machine. One desk carried a radio set capable of receiving short waive broadcasts. There was an electric clock, and a connected telephone on the desk which bore the number FR 9-3968. A printed and published 'Daily Racing Form' for July 21, showing the several entries for races to be run on that day, past performance of the horses, names of owners, trainers, jockeys, and other such information was found near the table. On the table were stacks of papers. Some were mimeographed and were described as 'run-down sheets' or 'scratch sheets'. Found in a near-by cardboard box (also described as a 'trash box' or 'paper basket') were similar 'sheets' showing the index number and names of the horses at the several tracks, the jockeys, their weight, probable odds, and other such information. Found with them, folded in a rubber band, were numerous smaller sheets, described by the officer as 'registration of bets on horse races made for the previous day', on which were written the names of individuals and certain numbers. As a sample, one of them contained the name 'Chet Keller-954-968,' followed by the figure (1) in the first column, nothing in the second column, and the figure (1) appearing again in the third column. Opposite it was the figure 1595. Opposite the figure 969 appeared the figure (1) in all three columns, followed by the figure 920. Opposite the figure 155-17 appeared the figure (1) in the first and third columns, followed by the figure 385, totaling 2900. Then follows what appears to be a summarization: 'P-2900 T-700'. Underneath a subtraction line appears the figure '-2200'. The officer explained that the first numbers indicated the index number of the horses, that the bettor bet the amount indicated in the first column to win, next to place, and the next to show, and the other figures indicated whether the bettor won or lost and the amount.

Chet Keller was called as a witness for the people. He stated he knew a man named Baehr; that he had indirectly placed bets with him by telephone; that Baehr had given him certain telephone numbers to call if he desired to place a bet; that he just called one of the numbers and made a bet and if the phone was busy he would call another; that he did not at that time remember the telephone numbers given him by Baehr because he destroyed the sheet on which he kept those numbers after identifying the number which the investigator had with him when they called on him about making bets at this address on National Avenue; that he never made bets with Baehr personally but it was true some unidentified person was reached by calling a number given by Baehr; that sometimes he won and others he lost; that Baehr or some person other than defendants would call at Keller's place of business and pay him or collect, as the case might be; that the parties who called would have a columnar sheet which looked similar in form to the small sheets attached to People's Exhibit 17, which the officer testified were a recordation of bets.

The men who were taken to the police station were searched. Defendants had small sums of money on their persons. Baehr had $1938 in currency. There was also removed from his pocket small columnar sheets and adding machine tape contained in an envelope marked 'Gene and Jimmie', and appeared to be an accounting of Baehr's business in respect to certain named persons and as to whether they had won or lost. Many of these names also appeared on People's Exhibit 17, found by the officers on National Avenue. One of the arrested persons, other than defendants, had some columnar or collection sheets on his person, similar to those mentioned. He tried to hide them by putting them in his shoes and also by hiding them behind the jail door. Another had 'Payout sheets' which he threw beside the store building while in custody of the officer. He had several hundred dollars on him when he was searched.

Sergeant Whitney, in charge of the vice squad, who qualified as an expert investigator on the subject of bookmaking, testified that accurate time clocks are used by bookmakers in determining the post time of a race; that some bookmakers use a short-wave radio set in obtaining racing information; that the other exhibits found in the room, excepting the mimeograph machine, were a type of paraphernalia ordinarily used by bookmakers and that some of the exhibits were 'bet registrations or other notations commonly made by bookmakers'.

Statements were taken of all parties arrested that morning. Brophy stated generally that he rented the room in question the year before; that the equipment was his; that the telephone was not in his name; that he had one employee (defendant Gompertz); that his occupation was that of operating a news service and that he distributed mimeograph sheets to his customers.

Defendant Gompertz stated that he was employed by Brophy; that he obtained the information from the 'green sheets' and typed the stencils from it; that some man whom he did not know, phoned the price to be put on it; that the radio was used on the ordinary band to receive results on the races which were broadcast from one of the regular stations in Los Angeles; that he wrote these results down and that occasionally, whenever persons called in to ascertain the results of a race, he furnished that information; that the names, numbers, etc. appearing on Exhibit 17 were 'something made up by somebody outside of me. It is not in my right'; that the men arrested at the place of business with him were unknown to him. The officers testified they were all bookmakers.

Defendants offered in evidence the statement of Baehr, in which he stated that he was a 'cleaning operator'; that he just heppened to be at that address that morning as a visitor; that he worked for himself and that he did not know what the envelope on him marked 'Gene and Jimmie' was and did not recall who gave it to him; that he did not know what the names, initials and markings on the slip meant but that they concerned his collections for his cleaning business; that some of the markings were in his handwriting. He then stated that he had been arrested in 1950 for suspicion of bookmaking.

As heretofore stated, it is defendants' claim that the papers which indicated a registration of bets found in the cardboard box must have belonged to Baehr, if anyone; that he must have thrown them there because the defendants in this action were too far from the box at the time of the raid and that no one saw them throw them there. This, no doubt, was the argument made to the jury, which argument was rejected by it.

It is true, as stated in People v. Simon, 66 Cal.App.2d 860, 153 P.2d 420, that in a prosecution under this section and subdivision, some causal connection must be shown between the paraphernalia found on the premises and the defendant before a conviction can be sustained. Such causal connection must be established as would reasonably justify an inference that the defendant occupied and kept a place where such devices were utilized for the purpose of recording or registering bets. People v. O'Brien, 37 Cal.App.2d 708, 712, 100 P.2d 367; People v. Fisk, 32 Cal.App.2d 26, 89 P.2d 142; People v. Rabalete, 28 Cal.App.2d 480, 82 P.2d 707. However, the prosecution is not required to show that a race was actually run or that any bet was actually made. People v. Warnick, 86 Cal.App.2d 900, 195 P.2d 552. The purpose...