People v. Tompkins
| Decision Date | 13 February 1952 |
| Docket Number | Cr. 4709 |
| Citation | 109 Cal.App.2d 215,240 P.2d 356 |
| Court | California Court of Appeals Court of Appeals |
| Parties | PEOPLE v. TOMPKINS. |
Joseph T. Forno, Los Angeles, for appellant.
Edmund G. Brown, Atty. Gen., William E. Fitzpatrick, Deputy Atty. Gen., for respondent.
In an information filed by the District Attorney of Los Angeles County defendant was accused in Count I of violating subdivision 1, section 337a of the Penal Code. Count II charged a violation of subdivision 3 of the same code section, while in Count III defendant was charged with a violation of subdivision 6 of the aforesaid Penal Code section.
Following the entry of pleas of not guilty, a jury was waived, and the cause proceeded to trial before the court, resulting in the acquittal of defendant on Counts I and III and conviction of the offense charged in Count II. A motion for a new trial was denied, judgment was pronounced, execution thereof suspended, and defendant granted conditional probation.
Defendant appeals from the judgment, verdict and sentence, and from the denial of his motion for a new trial. The attempted appeal from the verdict and sentence must be dismissed for the reason that there is no such appeal known to our law, People v. Clark, 106 Cal.App.2d 271, 273, 235 P.2d 56; People v. D'Elia, 73 Cal.App.2d 764, 766, 167 P.2d 253; People v. Rose, 26 Cal.App.2d 513, 519, 79 P.2d 737.
A review of the record discloses the following as a fair epitome of the testimony which gave rise to this prosecution. On March 3, 1951, Officer Joel Clark, attached to the vice detail of the Los Angeles Police Department, had occasion to observe the movements of defendant between the hours of 11:30 a. m. and 12:30 p. m. After following defendant in an automobile, during which time the defendant drove around the block three or four times, the officer observed him park in front of a market at 10425 Glenoaks Boulevard. The police officer thereupon stopped and parked his car opposite one side of the market. He observed defendant enter the store and walk up to a man later identified as Roy Beanblossom. The latter held a short conversation with defendant outside the hearing of the officer. Following the conversation defendant and Beanblossom walked out of the store through the front door. They stopped and held another conversation on the sidewalk. The officer approached the men and saw Beanblossom hand defendant a slip of paper.
Thereupon defendant was seen handing Beanblossom what appeared to the officer to be a $5 bill, saying, 'I think that is what I owe you, isn't it?' Beanblossom replied, Thereupon, Beanblossom put the $5 bill in his pocket.
At that time the officer exhibited his badge to the defendant and Beanblossom and at the same time removed two pieces of paper from the defendant's right hand. One piece of paper found in defendant's hand was a copy of the National Scratch Sheet, a publication listing horses running in the various races and predicting the odds on such horses.
At the trial, the officer, after being qualified as an expert on betting methods and paraphernalia utilized by bookmakers in Los Angeles County, identified the other piece of paper found in defendant's hand as a betting marker. A number of sheets of paper taken from the defendant's coat pocket were described by the officer as 'owe' sheets and 'betting markers'. The officer described the use of the 'owe' sheets as follows: He termed the sheet as a written memorandum of a wager or wagers made on horse races. That noted on the 'owe' sheet would be handicap number, and the number, bet on each place position. There were names or symbols at the top of each betting marker.
After recovering the aforesaid papers from defendant he and Beanblossom were taken to the former's automobile. There, the defendant in conversation with the officer stated he was taking bets out to the racetrack for Mr. Beanblossom's brother to bet for him in the pari-mutuel system. Defendant stated that the 'owe' sheets were a record of bets made for friends while he was at the track. He stated that the sheets were tabulated by his wife on an adding machine. Defendant identified the names at the top of the 'owe' sheets as 'Tommy', being a person who ran a newsstand in the San Fernando section of Los Angeles, and 'Mrs. Fenny' as a friend of his. Another 'owe' sheet had 'No. 10' at the top, and another had the word 'Empire'. These defendant contended he was unable to identify.
A portion of the foregoing conversation was corroborated by officer Foster.
One of the betting markers had the name 'Beanblossom' at the bottom of it and contained a list of horses which the officer testified were entered in races held on the day of the arrest.
Roy L. Beanblossom testified that he and defendant had business dealings of a mercantile nature and that the aforesaid $5 which the officer saw defendant hand Beanblossom was for groceries purchased by the former from the latter and to correct an overcharge. He denied having a conversation with defendant regarding horses.
Defendant as a witness in his own behalf testified that he was in the business of selling office supplies and had been so engaged for something over six months. He corroborated Roy Beanblossom's explanation of the conversation and the exchange of the $5 bill. He admitted having one betting marker in his possession, the same being the one which bore the name 'Ben' on it, and also admitted having the National Scratch Sheet in his possession. He denied that he had ever seen the other betting markers and 'owe' sheets which the officer testified were found in his coat pocket. Defendant explained the betting marker with Beanblossom's name on it as being used to indicate bets which Floyd Beanblossom, a brother of the aforesaid Beanblossom had asked him to make at the track. He stated that Floyd Beanblossom had told him the night before that he was going to leave money with the cashier of the store for defendant to pick up and bet on behalf of Floyd Beanblossom while defendant was at the track. He stated further that the cashier at the market had given him $36 or $37 to bet on behalf of Floyd Beanblossom.
The memorandum which accompanied the money, previously referred to as a betting marker with Beanblossom's name on it, totalled $37.00. Defendant testified that some of the sheets introduced into evidence as betting markers or 'owe' sheets were in fact written by him at the request of the arresting officer and that they had been written after he was arrested. He testified that he had around $50 on his person, exclusive of the $36 or $37 he received from the cashier in the grocery store. It appeared, however, at the trial, that defendant had in the neighborhood of $138.00 in cash on his person. He explained the discrepancy by saying that he carried $50 around as 'mad money', which he rarely counted.
Floyd Beanblossom testified that he had left money with the cashier of the grocery store to be bet at the track by defendant and that the slip showing horses to be bet on and the amount of bets was in his handwriting.
He further testified that defendant made these bets for him gratuitously.
Appellant's first contention is that the evidence is insufficient to sustain the judgment of conviction in that 'there was no evidence that appellant received, held, or forwarded any money or receipt or memorandum thereof which had been staked, pledged, bet or wagered upon the outcome of a horse race.'
This claim is untenable. While there was a sharp conflict in the evidence as given on the side of the prosecution by police officers and that given by witnesses for the defense, it was within the province of the trial judge to determine which witnesses and what evidence was entitled to credence. It is only where, as a matter of law, there is no substantial legal evidence to support the conviction that a reviewing court may disturb a verdict or decision. Upon an appeal in a criminal case, the appellate tribunal must assume in favor of the finding of the trier of fact the existence of every fact reasonably deducible from the evidence, and then determine whether or not the guilt of the accused can be reasonably inferred therefrom, People v. Rose, 26 Cal.App.2d 513, 517, 79 P.2d 737. In the case at bar, the evidence conclusively establishes that appellant in fact did receive and hold money belonging to the witness Floyd Beanblossom and which money was to be bet for Beanblossom within the enclosure of a licensed horserace track.
Although he does not mention section 19595 of the Business and Professions Code ...
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