People v. Lundy, Cr. 3300

• Decision Date: 23 May 1957
• Docket Number: Cr. 3300
• Citation: 311 P.2d 601,151 Cal.App.2d 244
• Court: California Court of Appeals Court of Appeals
• Parties: The PEOPLE of the State of California, Plaintiff and Respondent. v. Earl LUNDY, Defendant and Appellant.

Page 601

311 P.2d 601

151 Cal.App.2d 244

The PEOPLE of the State of California, Plaintiff and Respondent. v. Earl LUNDY, Defendant and Appellant.

Cr. 3300.

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

May 23, 1957.

Kenneth C. Zwerin, San Francisco, for appellant.

Edmund G. Brown, Atty. Gen., Clarence A. Linn, Asst. Atty. Gen., William M. Bennett, Deputy Atty. Gen., for respondent.

FRED B. WOOD, Justice.

Defendant appeals from an order granting probation after conviction of violating Penal Code section 337a(2) by keeping and occupying premises for the purpose of receiving bets upon horse races. ¹

Upon arraignment the defendant made a motion, which the court denied, to set the information aside on the ground that he was committed without reasonable or probable cause. That denial is not assigned as error but defendant does claim that the arrest and search (made without a warrant) were unreasonable, resulting in a verdict that rests upon evidence that was illegally seized.

The case was tried before the court without a jury and upon the reporter's transcript of the proceedings had before the magistrate upon preliminary examination.

(1) Does the verdict rest, in part, upon illegally seized evidence? No.

The officers placed a certain apartment under observation upon being informed that bookmaking was going on at a particular phone number, which they ascertained was at that apartment. The informant on a number of occasions had furnished them information as to illegal activities, information which proved reliable, having led to the detection of bookmaking activities. ²

The officers kept the apartment under observation for several days. Defendant was seen to leave the premises each morning with his dog, drive to a certain cigar store and there purchase a racing form. He would then drive to one of the nearby parks and allow his dog to go for a run, returning at approximately 10:30 a. m. to the apartment. He would then remain at the apartment until about 6:00.

On one of these occasions, while his dog was running in the park, defendant tore up some papers and put them in a garbage can. The papers were recovered from the garbage can by the police. They proved to be three Daily Bulletins and Sports Reviews, and several pieces of lined white paper with figures written in pencil. One of the officers testified that these papers were bookmaking paraphernalia and correlated with each other as records of bets on the dates reflected on the rundown sheets or Sports Review.

On the day of the arrest one of the officers had the informant call the phone number listed for this apartment and place a bet. The officer, who listened in, testified that he watched the informant dial the number, heard a person at the other end of the line say 'Yep' and then the informant related a series of numbers, plus the amount, plus his own initials, and that was all. The conversation ended at that point. ³

Thereupon, the officers told the informant to go on his way and they proceeded to the apartment and made the arrest and search.

It seems clear that this evidence furnished ample support for the magistrate's and the trial court's implied findings that the officers had 'reasonable cause for believing' that defendant committed the felony which it was later found (upon sufficient evidence) had been committed. Pen.Code, § 836, subd. 3. The evidence included not only the information furnished by the unnamed informant ⁴ but the quite tangible circumstantial evidence observed and obtained by the officers themselves.

(2) Is the evidence sufficient to support the verdict? Yes.

When they arrived at the apartment, three of the officers stationed themselves at the front door, one at the back door and one in the back yard. The officers at the front rapped on the door, heard a window going up and then forced their way into the apartment. The officer in the back yard saw defendant tear up pieces of paper and throw them out of the window. These papers were pieced together and proved to be current records of bets for the day of the arrest. In the apartment the officers found a copy of the Daily Bulletin and Sports Review, dated April 6, 1956 (the day of the arrest), a paper-bound booklet entitled 'Racing Parlay Manual,' a ruled note pad, and a number of other items which one of the officers (whom defendant stipulated is an expert) testified constitute bookmakers' paraphernalia, describing the use made of various of these items.

Defendant contends that there is insufficient evidence to establish his guilt since he might have been only academically interested in the literature found in his apartment. This might be true as to the Daily Bulletins and Sports Reviews and to a lesser extent concerning the Racing Parlay Manual, if this were all. But actual records of bets were found. Such records in the defendant's own handwriting were treated as furnishing support for a conviction in People v. Carson, 101 Cal.App.2d 555, 225 P.2d 652. There is no direct evidence here that the records were in the defendant's own handwriting, but since the defendant and his wife were the occupants of the apartment and defendant told the officers that his wife was not responsible for 'anything that was transpiring in the apartment there', direct evidence would not seem to be necessary here.

Nor is it necessary for the prosecution to establish by direct evidence the purpose for which the room is being occupied. The purpose in keeping the room can be inferred from all the surrounding circumstances. People v. Tepper, 36 Cal.App.2d 525, 527, 97 P.2d 1002.

It is a factual question: What reasonable inferences could the trial court have drawn from the evidentiary facts in the record? Of course, no two cases present identical sets of facts. But the following cases are sufficiently similar to each other and to this case, upon the facts, to convince us that here the evidence supports the verdict: People v. Donaldson, 130 Cal.App.2d 250, 278 P.2d 739; People v. Fox, 126 Cal.App.2d 560, 272 P.2d 832; People v. Davis, 65 Cal.App.2d 255, 150 P.2d 474; People v. Shapiro, 50 Cal.App.2d 60, 122 P.2d 382.

(3) Was defendant unreasonably restricted in his cross-examination? No.

During his direct examination officer Martin testified that he received information from a confidential source, that the confidential informant had given information that had proved reliable in the past, and was asked 'what was the information that you had from your informant,' when defendant's counsel interposed: 'I presume that this line of questioning is for the limited purpose of the reasonableness of the seizure. For that limited purpose, I will not object,' whereupon the prosecutor said 'It is for that limited purpose' and the court, 'It is allowed for that limited purpose.' The direct examination was then resumed and the witness narrated without objection, the information given by the confidential informant.

During cross-examination of this witness, the following occurred:

'Q. [By defense counsel] From what source did you receive information that bookmaking activities were involved on the premises?

'Mr. Maurer: I am going to object to any part of the answer, on the ground that it would tend to disclose the identity of the confidential informant, your Honor.

'The Court: The objection is...