People v. Reifenstuhl

MOORE, P. J.

Defendant appeals from a judgment of conviction for violating subdivision 2, section 337a of the Penal Code and from the order denying her motion for a new trial. Said subdivision makes it a felony for any person to keep or occupy a room or enclosure of any kind with books or paraphernalia for the purpose of recording bets upon the results of horse races. The bases of her appeal are as follows: (1) insufficiency of the evidence; (2) the officer’s telephonic conversation in the room occupied by defendant with an unknown party was erroneously admitted; (3) the court should have accepted the hypothesis of innocence.

(1) The defendant was an employee in a drug store on Wilshire Boulevard; she occupied a room to the rear, upstairs. When the officer entered the room, defendant was sitting twenty feet from the entrance at the desk. As the officer entered, she pushed a scratch sheet under the desk where she was seated and did nothing more. Beside her desk stood a man who put down two half-dollar coins and said to the defendant: “Give me $1 to win on Aces Wild.” The officer said: “Betty, I told you that we would be up here again; that we would catch you book making” to which she responded: “Yes, I know you told me.”

The officer took from the top of defendant’s desk a master scratch sheet, and retrieved a National scratch sheet which she had cast beneath the desk and which was dated June 17, 1939, the day of the arrest. The master scratch sheet contained

[404]

the names of horses and their numbers. The National scratch sheet contained a list of the races, the names of the horses, the jockeys and their weights, running on different race tracks in different parts of the United States. The piece of paper recovered by the officer from the waste basket contained the names of six horses with numerals appearing opposite their names which indicated three two-horse parlays. Two newspapers, open at the page containing racing information, lay upon the long counter. The officer found two telephones in the room, both of which rang as he conferred with defendant. Answering one of them, the officer spoke: “No, she is not. She is busy. Is there anything I can do for you?” To his question, the voice replied: “I want $1 to win on Nilka in the third race at Hollywood and one on Cozette to show in the fourth race. This is M. T. talking.” The officer told him “he was on”. Defendant said nothing. Six weeks previously the same officer had called at the room when he found the “same condition” and six or eight people in the room. Defendant made no denial of any fact given in the testimony.