People v. Steccone

• Decision Date: 24 October 1950
• Docket Number: Cr. 5144
• Citation: 36 Cal.2d 234,223 P.2d 17
• Court: California Supreme Court
• Parties: PEOPLE v. STECCONE et al.

Page 17

223 P.2d 17

36 Cal.2d 234

PEOPLE v. STECCONE et al.

Cr. 5144.

Supreme Court of California, in Bank.

Oct. 24, 1950.

J. Emmet Chapman, Frederick C. Dewar, San Francisco, Golden & Fratis and J. Bruce Fratis, Oakland, and Julius M. Keller, San Francisco, for appellants.

Fred N. Howser, Attorney General, and Clarence A. Linn, Deputy Attorney General, for respondent.

SPENCE, Justice.

Defendants John P. Steccone and Peter Makris were charged with conspiracy (Pen.Code, § 182, subd. 1) to 'keep and maintain rooms and places * * * (at) 1313 Park Street and 136 Santa Clara Avenue in the city of Alameda, with books, papers, devices and paraphernalia for the purpose of recording and registering bets and wagers on horse races.' (Pen.Code, § 337a, subd. 2.) Six overt acts were listed in the information. The jury returned a verdict finding each defendant guilty as charged. Motions for new trial were separately made and denied. Defendants were placed upon probation, conditioned, among other things, upon defendant Steccone serving a term of six months and defendant Makris a term of three months in the county jail. Each defendant has appealed from the 'judgment' and from the 'order denying a new trial.'

Since the court did not pronounce judgment but suspened proceedings and granted probation, the purported appeals from the judgments must be dismissed, People v. Murphy, 60 Cal.App.2d 762, 765, 141 P.2d 755; People v. Warnick, 86 Cal.App.2d 900, 901, 195 P.2d 552; People v. Labarbera, 89 Cal.App.2d 639, 644, 201 P.2d 584, and consideration will be given only to the points raised by appellants as ground for reversal of the orders denying a new trial. Each appellant questions the sufficiency of the evidence to sustain the verdicts and the admissibility of certain evidence against him; and, in addition appellant Steccone attacks the propriety of the trial court's refusal of specific instructions requested by him. A review of the record compels the conclusion that neither appellant has shown any ground for reversal.

From the record it appears that appellant Makris, the owner and operator of the Step-Inn Club, a restaurant and tavern located at 1313 Park Street, Alameda, was accepting in July, 1947, bets placed on horse races. Police Officer White testified that 'pursuant to his plain-clothes duty, investigating bookmaking,' he went to Makris' club on July 15, 16, and 18, 1947, on each of which days he 'placed a $2.00 bet'; that during the course of his visits there, makris made two similar telephone calls from behind the counter one on the 15th and the other on the 16th the first to an unnamed person and the second to a person identified as 'John,' each time 'call(ing) off a lengthy list of numbers * * * (and) various amounts of money,' using, among other phrases, the words 'to win, to place, to show'; that while he was on the premises he saw certain persons at the bar place bets with Makris, with the latter putting the money so received 'in his pocket'; and that he, White, collected on his first bet with Makris, who 'checked the list' and then paid him his winnings. Makris was not arrested at this time.

The next date pertinent to the charge against appellants is February 3, 1949, some eighteen months following Officer White's investigation. Police Inspector Johnson testified that on that day about 11:00 o'clock in the morning, he with three other police officers 'in civilian clothes' went to the Step-Inn Club, asked the 'customers in the place * * * to leave,' and then searched the premises 'for evidence.' In a drawer in the back of the bar they found approximately forty-five sheets of paper, ruled horizontally and vertically into lines and columns by a mimeographing process, but with no writing thereon. Makris was then arrested. While the officers were still there, appellant Steccone entered the club, and was immediately 'placed in custody' and searched. On his person was found a 'daily Bulletin and Sports Review' of February 3, 1949, some sheets of ruled paper and a 'single sheet' with writing on it, having columns of figures and the name 'Pete' at the top. These articles were 'laid on (a) shuffleboard table,' and as the officers 'turned away,' Steccone 'grabbed' the paper marked with the name 'Pete' and 'tore (it) up.' One of the officers 'picked up the pieces,' 'grabbed ahold of * * * Steccone and told him that was a very foolish thing to do,' and Steccone replied 'yes, he guessed it was.' These 'pieces' were later 'put * * * together with Scotch tape' and constitute one of the exhibits in the record.

After the arrest of appellants at the Step-Inn Club, the officers went to Steccone's home at 136 Santa Clara Avenue, Alameda, and were admitted by Mrs. Steccone. Upon searching the rumpus room in the basement, they found an adding machine containing a tape with a long series of figures on it, the figures corresponding to those found on the sheet of paper torn up by Steccone at the time of his arrest in the club. The officers also found in a closet in the same room of the Steccone home a small 'open cardboard box' with 'one single sheet' in it ruled in a manner similar, but not identical with the sheaf of papers found in the Step-Inn Club, and likewise without any writing thereon. A police officer, following his qualification as an expert witness on methods used by bookmakers in the vicinity for keeping their records, stated that the various mentioned items found in the two places were paraphernalia commonly used in the conduct of bookmaking.

In addition to the foregoing evidence, there was admitted as to appellant Makris only a statement which he made to Officer Johnson in the office of the Inspector of Police in Alameda on February 3, 1949, after his arrest and so identified by Officer Johnson and the police department secretary at the trial. It appears that Makris there stated that the 'run down' sheets 'ruled off in squares' found at his club had been given to him by 'Johnnie Steccone' for registering bets on the horse races, that he made 'sometimes 10 * * * 15 * * * 20 bets' with 'Johnnie per day,' involving 'as a rule' sums of money from $20.00 * * * (to) $50.00,' that they settled their accounts every day 'about 10:30 or 11:00 o'clock' when Johnnie would come to the club, and that it was Johnnie's practice to 'mark * * * down' these bets on one of these ruled sheets.

As a general rule, a conspiracy can only be established by circumstantial evidence 'for, as the courts have said, it is not often that the direct fact of an unlawful design which is the essence of a conspiracy can be proved otherwise than by the establishment of independent facts, bearing more or less closely or remotely upon the common design (5 Cal.Jur. 521); and it is not necessary to show that parties met and actually agreed to undertake the performance of the unlawful acts (citing authority), nor that they had previously arranged a detailed plan * * * for the execution of the conspiracy (citing authority).' People v. Sampsell, 104 Cal.App. 431, 438-439, 286 P. 434, 437. However, before evidence of the acts and declarations of an alleged co-conspirator is admissible against the other, the fact of the conspiracy must be proved. (Code Civ.Proc., § 1870, subd. 6.) In recognizing the...