People v. Woods

• Citation: 35 Cal.2d 504,218 P.2d 981
• Decision Date: 31 May 1950
• Docket Number: Cr. 5063
• Parties: PEOPLE v. WOODS.
• Court: United States State Supreme Court (California)

Page 981

218 P.2d 981

35 Cal.2d 504

PEOPLE v. WOODS.

Cr. 5063.

Supreme Court of California, in Bank.

May 31, 1950.

Rehearing Denied June 29, 1950.

Chotiner & Chotiner and Murray M. Chotiner, Beverly Hills, for appellant.

Fred N. Howser, Attorney General, and Kent C. Rogers, Deputy Attorney General, for respondent.

GIBSON, Chief Justice.

In count one of an information, defendant Woods was charged with receiving a bet on the outcome of a horse race, in violation of Penal Code section 337a, subdivision 3. Count two charged that defendant kept and occupied an automobile with a book and papers for the purpose of recording a wager, in violation of subdivision 2 of the same section. A jury found the defendant guilty on both counts and he was sentenced to be imprisoned in the county jail for six months on each count, the sentences to run concurrently. This appeal is taken from the judgments of conviction and the order denying defendant's motion for new trial.

Early in the afternoon of November 23, 1948, police officers Potter and O'Keefe went to a bar near Florence and Vermont avenues in the city of Los Angeles. Potter entered the bar and O'Keefe waited across the street. According to Potter's testimony, when he went inside defendant was seated at the counter in the bar with a scratch sheet in front of him. Two men, one of whom carried the sports section of a newspaper, approached defendant at different times and spoke to him. Each man handed some currency to defendant, who looked at the scratch sheet, went to a telephone booth in the bar and had a conversation over the telephone. Potter had defendant under observation in the bar for about twenty minutes, and during that time defendant did not eat or drink anything. Defendant left the bar and got into his automobile which was parked at the curb near by.

Police officer O'Keefe testified that a newsboy, who had been standing on the corner studying a racing form, took money from his pocket, looked in the direction of defendant and pointed to the bar. Defendant shook his head from side to side. The newsboy entered the bar, remained for about 30 seconds, came out, and walked directly to defendant's car. The newsboy said to defendant, 'Give me $2.00 to win on Secret Flight in the 8th at Tanforan,' and handed him some currency. Defendant replied, 'Okay,' and wrote something on a piece of paper. After the newsboy departed, O'Keefe engaged defendant in a conversation. Defendant said that he had been taking bets in that vicinity for about two months, that he phoned the bets out, and received ten per cent for handling them. O'Keefe thereupon placed defendant under arrest. At that time defendant had in his pockets a 'Metropolitan Scratch Sheet,' an address book, and over $200 in cash. The piece of paper on which O'Keefe had seen the defendant write was found on the seat of the car and contained the notation '8-Sec. Fligh-2-' and some other 'scribbling.' O'Keefe, who qualified as an expert on bookmaking practice, testified that the piece of paper was what is commonly called a 'betting marker'; that the numeral '8' signified the 8th race; that 'Sec. Fligh' indicated 'Secret Flight,' the name of a horse, which according to defendant's scratch sheet, was running in the 8th race at Tanforan Race Track; and that the number '2,' with a dash after it, signified $2.00 to win, nothing to place or show. The address book was of a type frequently carried by bookmakers for listing the names or initials of debtors and creditors and was known in the trade as an 'owe sheet.' The scratch sheet, the paper on which defendant noted the bet, and the address book were received in evidence.

Defendant denied having received any money in the bar, except as change for his purchase of a sandwich and coffee. He stated that his exchange of money with the newsboy was for the purchase of a newspaper, and explained the notation he had made on the piece of paper as being merely the recordation of a personal bet that he intended to make. Defendant also denied having made the statements attributed to him by officer O'Keefe.

The first ground for reversal urged by defendant is that the evidence is insufficient to support a conviction on either count. We are of the view that defendant's contention must be sustained as to the second count but that the evidence is sufficient to support the judgment on the first count.

Section 337a, subdivision 2 of the Penal Code defines the offense charged in count two as the keeping or occupancy 'for any period of time whatsoever, any room, shed, tenement, tent, booth, building, float, vessel, place, stand or inclosure, of any kind, or any part thereof with a book or books, paper or papers, apparatus, device or paraphernalia, for the purpose of recording or registering any bet or bets, * * * upon the result or purported result, of any trial, or purported trial, or contest, or purported contest, of skill, speed or power of endurance of man or beast * * *.' It is clear that the offense thus defined is the maintenance of some type of bookmaking establishment. Assuming that an automobile under some circumstances might be kept or occupied as a bookmaking 'place' and thus come within the terms of the statute, see People v. Roche, 68 Cal.App.2d 665, 669, 157 P.2d 440, the evidence does not show that the automobile in the present case was so maintained. The only evidence relied upon to substantiate the charge is that within a few minutes after defendant had entered his automobile, he received a bet from a newsboy who had been standing on the corner, that the paper on which defendant noted the bet was found on the car seat, and that when arrested defendant had a scratch sheet and an address book on his person. Something more than this is necessary to constitute a violation of subdivision 2. ¹ Although it can be inferred that defendant used the automobile to travel to and from the community where he engaged in the bookmaking business, it cannot be reasonably inferred from the evidence that the automobile was kept or occupied as a bookmaking establishment. The judgment must be reversed as to count two.

The offense charged in count one, the violation to subdivision 3 of section 337a, is committed when money is received as a wager on a race. People v. Hoffman, 94 Cal.App.2d 379, 210 P.2d 885. The testimony of officer O'Keefe concerning the transaction between defendant and the newsboy, the piece of paper on which defendant recorded the bet, and defendant's admissions with respect to the business in which he was engaged, are clearly sufficient to support the verdict of the jury that defendant was guilt of taking a wager on the outcome of a horse race. Defendant relies on People v. Banks, 39 Cal.App.2d 164, 102 P.2d 818, in which it was held that evidence somewhat similar to that in the present case was insufficient to support a conviction under subdivision 3. However, it appears, as stated in the case of People v. Hoffman, surpa, 94 Cal.App.2d 382, 210 P.2d at page 887, that in the Banks case 'the appellate court weighed the evidence and decided in accordance with the testimony of witnesses who were not believed by the trial court and contrary to the evidence that the court had accepted as true.' People v. Banks, supra, is disapproved insofar as it is in conflict with our holding that the evidence is sufficient to support the judgment as to count one.

Defendant contends that the trial court erred in denying his motion to strike Potter's testimony. At the close of the direct examination of this witness, defendant inquired whether the People were relying upon the events in the bar or the transaction with the newsboy as constituting the offense charged in count one. The People answered that the purpose of Potter's testimony was not to show that an offense was committed in the bar, but to illuminate the character of the transaction which occurred later outside the bar. Defendant then moved to strike the testimony of Potter as being evidence of crimes with which defendant was not charged. It is settled in this state that except when it shows merely criminal disposition, evidence which tends logically and by reasonable inference to establish any fact material for the prosecution, or to overcome any material fact sought to be proved by the defense, is admissible although it may connect the accused with an offense not included in the charge. People v. Dabb, 32 Cal.2d 491, 499, 500, 197 P.2d 1; People v. Peete, 28 Cal.2d 306, 314, 315, 169 P.2d 924. The actions of defendant and the two unidentified men in the bar, which indicated that defendant engaged in the taking of bets, shed some light on the nature of the transaction between defendant and the newsboy which followed shortly thereafter, and also tended to confirm the admissions made to O'Keefe with respect to defendant's occupation. See People v. Schwartz, 14 Cal.App. 9, 12, 110 P. 969. The evidence was therefore relevant and the motion to strike was properly denied.

The trial court at the request of defendant instructed the jury on the general subject of admissions and confessions. Instructions relative to a confession were not applicable to the facts of this case because the only statements made by defendant outside the court room were those made to Officer O'Keefe which were merely admissions and did not amount to a confession of either of the offenses charged. Of course, defendant, having requested that the court give instructions relating to confessions, is in no positionto base a claim of error on the ground that instructions on that subject were inapplicable, and he does not do so. He does, however, complain that the following instruction, which he did not request, is erroneous: 'If under my instructions you find that a voluntary confession was made you are the exclusive judges as to whether or not the confession was...