People v. King

• Court: California Court of Appeals
• Writing for the Court: FOURT
• Citation: People v. King, 140 Cal.App.2d 1, 294 P.2d 972 (Cal. App. 1956)
• Decision Date: 19 March 1956
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent, v. Thomas Michael KING, Defendant and Appellant. Crim. 5526.

Page 972

294 P.2d 972

140 Cal.App.2d 1

The PEOPLE of the State of California, Plaintiff and Respondent, v. Thomas Michael KING, Defendant and Appellant.

Crim. 5526.

District Court of Appeal, Second District, Division 1, California.

March 19, 1956.

Hearing Denied April 18, 1956.

A. H. McConnell, Long Beach, for appellant.

Edmund G. Brown, Atty. Gen., Robert S. Rose, Deputy Atty. Gen., for respondent.

FOURT, Justice.

In an information filed by the District Attorney of the County of Los Angeles the appellant, Thomas Michael King, was charged in Count I with a violation of section 337a, subdivision 1, Penal Code, a felony, in that he 'did willfully, unlawfully and feloniously engage in poolselling and bookmaking * * *.' In Count II the appellant was charged with the violation of section 337a, subdivision 2, Penal Code, a felony, in that he 'did willfully, unlawfully and feloniously, for gain, hire, reward, gratuitously and otherwise, keep and occupy a house, located at 161 Claremont Avenue, Long Beach, with a book and books, paper and papers, apparatus, device and paraphernalia, for the purpose of recording and registering a bet and bets, and purported bet and bets, and wager and wagers, and purported wager and wagers, and of selling pools, and purported pools, upon the result and purported result, of a trial, and purported trial, and contest, and purported contest, of skill, speed and power of endurance between beasts, to wit, horses.' In Count III appellant was charged with a violation of section 337a, subdivision 4, Penal Code, a felony, in that he 'did willfully, unlawfully and feloniously, for gain, hire, reward, gratuitously and otherwise, record and register a bet and bets, and a wager and wagers, upon the result and purported result of a trial and purported trial and contest and purported contest of speed and power of endurance between beasts, to wit, horses.'

Appellant was arraigned in the superior court, made a motion to dismiss the information under section 995 of the Penal Code, which was denied, and thereafter he entered his plea of not guilty to each of the counts.

When the cause came on for trial on June 30, 1955, the appellant and all counsel waived trial by jury and stipulated that the People's case would be submitted on the transcript of the testimony taken at the preliminary hearing, with all parties reserving the right to put on such additional testimony as desired.

The transcript of the testimony taken at the preliminary hearing was admitted into evidence. The prosecution put on additional testimony and rested. The appellant rested and the court found him guilty of counts I, II and III, as charged in the information.

Appellant made a motion for a new trial which was denied; he was then sentenced to imprisonment in the county jail for the term of two months on each count, the sentences to run concurrently. He filed his notice of appeal from the order denying his motion for a new trial and from the judgment.

Appellant did not testify in his own behalf. The following is a fair statement of the facts of the case, based largely on the testimony of Officer R. M. Gardner, a deputy sheriff of Los Angeles county, and Donald Ashton, a representative of the telephone company.

On April 9, 1955, Gardner received information from a confidential informant that Thomas King was using Long Beach telephone numbers 98383 and 81436 for bookmaking purposes. The confidential informant had on previous occasions given competent and correct information to Officer Gardner. Subsequently, Officer Gardner observed the informant dial Long Beach number 98383 on a telephone. Long Beach number 98383 is a number assigned to the telephone located at 161 Claremont Avenue, Belmont Shore, Long Beach, California, a two-story residence. While Officer Gardner listened in the telephone, the confidential information stated his name, identified himself, and said, 'Give me ten dollars to win on Rover Bill in the sixth race at Golden Gate.' A male voice answered, 'O.K., I get your bet.'

Officer Gardner was then told by Deputy Sheriff Greenless that he had called Long Beach number 98383 and had obtained race results. Officer Gardner instructed Deputy Greenlees to go down to the corner and again call the location. Deputy Greenlees went to the corner and subsequently returned, and informed Officer Gardner that he had again dialed that number and had for the second time obtained race results.

At approximately 4:15 p. m. Officer Gardner, Sergeant Jacobson of the Long Beach Department and several other sheriff's deputies proceeded to the 161 Claremont Avenue residence. Officer Gardner then knocked on the door and identified himself. After waiting for approximately two minutes and after receiving no response to his knock, Officer Gardner forced open the door, by kicking it in. After their entry the officers found the appellant, Thomas King, seated at a table in the dining room portion of the lower floor. In front of appellant were numerous pieces of paper, two telephones, pencils and several documents which Officer Gardner, a qualified expert in the ways, means, devices, paraphernalia commonly used in Los Angeles county for bookmaking, identified as betting markers and scratch sheets. In the officer's opinion, 'this location is what is commonly called a phone spot, which is a location where bets are received over the telephone and reported on pieces of paper.'

At about 4:30 p. m. the telephone rang. Officer Gardner answered the phone. A man's voice replied, 'This is Andy * * * in the eighth race at Golden Gate Field I want 10, 5 and 10 on Fabulous Vega.' At about 4:35 p. m. the phone rang again and a man's voice stated, 'This is 527, give me $4,00 to win on Mr. Sullivan in the eighth race at Golden Gate.'

Subsequently, appellant informed Officer Gardner that he did not live on the premises at 161 Claremont Avenue; that he had recorded all the bets; that the betting markers were all in his handwriting; that 'he took in approximately $2,000 a day in bets over the telephone, for which he was paid $15.00 a day in wages * * *.'

Appellant contends, in substance, that the information received by the arresting officer, from the confidential informant, which was offered in evidence to establish probable cause was inadmissible hearsay.

In each of the instances objected to by the appellant the extra-judicial statements were offered in evidence not to prove the truth of the matter asserted, but to establish probable cause to effect the search and seizure. The truth of the information given to Officer Gardner was not in issue, nor was it offered in evidence to prove any element of the offense against the appellant. The evidence in question was offered solely to establish that the officer had reasonable or probable cause to effect the search and seizure. We believe the testimony was admissible, and as such was properly received in evidence.

It is set forth in 6 Wigmore on Evidence, 3d ed, § 1766, pp. 177-178, among other things, the following:

'The theory of the Hearsay rule is that, when a human utterance is offered as evidence of the truth of the fact asserted in it, the credit of the assertor becomes the basis of our inference, and therefore the assertion can be received only when made upon the stand, subject to the test of cross-examination. If, therefore, an extrajudicial utterance is offered, not as an assertion to evidence the matter asserted, but without reference to the truth of the matter asserted, the Hearsay rule does not apply. The utterance is then merely not obnoxious to that rule. It may or may not be received, according as it has any relevancy in the case; but if it is not received, this is in no way due to the Hearsay rule.

* * *

* * *

'The prohibition of the Hearsay rule, then, does not apply to all words or utterances merely as such. If this fundamental principle is clearly realized, its application is a comparatively simple matter. The Hearsay rule excludes extrajudicial utterances only when offered for a special purpose, namely, as assertions to evidence the truth of the matter asserted.'

Also in section 1789 of Wigmore (supra), where it is stated, at page 235:

'Wherever an utterance is offered to evidence the state of mind which ensued in another person in consequence of the utterance, it is obvious that no assertive or testimonial use is sought to be made of it, and the utterance is therefore admissible, so far as the Hearsay rule is concerned.'

It is settled that reasonable cause to justify an arrest may consist of information obtained from others and is not limited to evidence that would necessarily be admissible at the trial on the issue of guilt. People v. Boyles, 45 Cal.2d 652, 290 P.2d 535; see, also, Brinegar v. United States, 338 U.S. 160, 171-176, 69 S.Ct. 1302, 93 L.Ed. 1879; United States v. Li Fat Tong, 2 Cir., 152 F.2d 650, 652; Aitken v. White, 93 Cal.App.2d 134, 145, 208 P.2d 788; Cook v. Singer Sewing Machine Co., 138 Cal.App. 418, 422-423, 32 P.2d 430; Willson v. Superior Court, 46 Cal.2d 291, 294 P.2d 36.

'The term, reasonable or probable cause, has been defined: 'By 'reasonable or probable cause' is meant such a state of facts as would lead a man of ordinary caution or prudence to believe, and conscientiously entertain a strong suspicion, that the person accused is guilty.' In re McCarty, 140 Cal.App. 473, 474, 35 P.2d 568.

'The term, 'probable,' has been defined as meaning 'having more evidence for than against; supported by evidence which inclines the mind to believe, but leaves some room for doubt.' Ex parte Heacock, 8 Cal.App. 420, 421, 97 P. 77.' People v. Novell, 54 Cal.App.2d 621, 623-624, 129 P.2d 453, 454.

It was stated in People v. Brite, 9 Cal.2d 666, at page 687, 72 P.2d 122, at page 133: "Probable cause is a suspicion founded upon circumstances sufficiently strong to warrant a reasonable man in the belief that the charge is true.' [Citing cases.] Reasonable or...