People v. Owens, Cr. 4872

Citation117 Cal.App.2d 121,255 P.2d 114
Decision Date31 March 1953
Docket NumberCr. 4872
CourtCalifornia Court of Appeals
PartiesPEOPLE v. OWENS.

John Owens, in pro. per.

Edmund G. Brown, Atty. Gen., and Norman H. Sokolow, Deputy Atty. Gen., for respondent.

FOX, Justice.

Plaintiff was convicted of 14 counts of grand theft and 17 counts of violation of Penal Code section 337a, subdivision 3. He appeals from the verdict and judgment and the order denying his motion for a new trial.

Defendant represented to a number of business men that he was an ex-jockey and belonged to a jockeys' association; that at least once in every meet there was a jockey race, or a fixed race, so that unemployed jockeys could themselves place bets on this particular race and have a select clientele for whom they could also place bets. Defendant explained that his clients gave him various amounts of money to be bet on these particular races and that his fee for handling the transaction was one third of the winnings. There were no such races. Defendant, however, received from his victims various amounts, ranging from $250 to $1,000, to be placed on such races. None of these amounts were or could be so wagered for there was no fixed race. After receiving the money for the so-called wager, defendant then disclosed to his victim the horse on which the money would be placed.

As to fourteen of these transactions, there are two counts in the information growing out of each. One count charges grand theft, Pen.Code, § 484, and the other charges defendant with receiving money to be wagered on horse races, Pen.Code, § 337a, subd. 3.

Defendant claims that the convictions of grand theft must be reversed because 'the evidence is insufficient to establish the required specific intent to permanently deprive the owners of their property at the time they issued their checks' to him. This proposition is not well founded. There was no fixed race, which fact defendant knew when he made the contrary representation to his several victims. However, they parted with their money in reliance on his statements from which the inference readily arises that he intended to permanently deprive them of their property at the time he acquired possession thereof. The evidence is ample to support the grand theft convictions upon either the theory of false pretenses or by trick and device. People v. Chamberlain, 96 Cal.App.2d 178, 181-183, 214 P.2d 600; People v. Rial, 23 Cal.App. 713, 717, 139 P. 661; People v. Caldwell, 55 Cal.App.2d 238, 247-250, 130 P.2d 495. The victims were not betting on a particular horse. The later identification of the horse and the race was merely an incident in defendant's fraudulent scheme by which he procured money to be placed on a particular kind of race, viz., a fixed race, which he knew did not exist.

Defendant attempts to escape conviction under section 337a, subd. 3, on the ground that the evidence indicates he 'placed most of his bets at one of the race tracks through the pari mutual machine as provided by law.' This defense was considered and rejected in People v. Tompkins, 109 Cal.App.2d 215, 240 P.2d 356. The court stated, 109 Cal.App.2d at page 221, 240 P.2d at page 359, that to 'sustain it would be to permit commercialized gambling conducted away from the race track to flourish' and pointed out that this was contrary to the public policy of the state as expressed through its legislative enactments. Defendant's contention here is wholly without merit.

Defendant argues that the same transaction cannot constitute two offenses, and therefore he could not be guilty of violating both section 337a, subd. 3, Penal Code, and grand theft as a result of his dealings with any one of his victims upon any particular occasion. He fails to conceive, however, the implications of each of these transactions, and the facets of public policy which each transgresses. The rule is that '* * * A defendant may be convicted of separate offenses arising out of the same transaction when each charge is separately stated and the offenses differ in their elements and one is not included in the other.' Rodriguez v. Superior Court, 27 Cal.2d 500, 501, 165 P.2d 1, 2. It is clear that these offenses differ in their elements and one is not included in the other. By the terms of section 337a, subd. 3, Penal Code, it is a public offense to receive 'in any manner whatsoever' money for the purpose of being bet upon the result of a horse race. The purpose of this act is to protect the public against commercial gambling, generally, on horse races. The essence of this offense is the receipt of money to be used for that prohibited purpose. This is very different from a public policy which makes it a crime for a person to knowingly and designedly defraud another of his property by false pretenses or by some trick and device and thus commit grand theft. Penal Code, § 484. In People v. McCabe, 60 Cal.App.2d 492, 141 P.2d 54, conviction on 19 counts of grand theft and 19 counts of violation of the Corporate Securities Act (there being two counts based on each transaction) was affirmed. As to the latter violations, the court pointed out, 60 Cal.App.2d at page 494, ...

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8 cases
  • State v. Hall
    • United States
    • Idaho Supreme Court
    • June 25, 1963
    ...(Wash.) 365 P.2d 24; State v. Feinzilber (Nev.) 350 P.2d 399; People v. Candelaria, 153 Cal.App.2d 879, 315 P.2d 386; People v. Owens, 117 Cal.App.2d 121, 255 P.2d 114; Rodriguez v. Superior Court, 27 Cal.2d 500, 165 P.2d 1; Collins v. State (Okl.Cr.App.) 106 P.2d 273; People v. Warren, 16 ......
  • People v. Otterman
    • United States
    • California Court of Appeals Court of Appeals
    • October 4, 1957
    ...to the purpose contemplated by the owner.' To the same effect see, People v. Kirsch, 204 Cal. 599, 602, 269 P. 447; People v. Owens, 117 Cal.App.2d 121, 123, 255 P.2d 114; People v. Sears, supra, 124 Cal.App.2d 839, 853, 269 P.2d 683; People v. Chamberlain, 96 Cal.App.2d 178, 182, 214 P.2d ......
  • People v. Gilliam
    • United States
    • California Court of Appeals Court of Appeals
    • May 23, 1956
    ...People v. Bartges, 126 Cal.App.2d 763, 770, 273 P.2d 49; People v. Mason, 86 Cal.App.2d 445, 450, 195 P.2d 60; People v. Owens, 117 Cal.App.2d 121, 123, 255 P.2d 114; People v. Sears, 124 Cal.App.2d 839, 853, 269 P.2d 683; People v. Chamberlain, 96 Cal.App.2d 178, 182, 214 P.2d Defendant's ......
  • Horrell v. Santa Fe Tank & Tower Co.
    • United States
    • California Court of Appeals Court of Appeals
    • March 31, 1953
    ... ...         'Q. Now, in reselling the tower to the American Fruit people did you re-guarantee the tower to them? A. I did ...         'Q. And upon what did you ... ...
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