People v. Owens

GIBSON, C. J.

Defendant was accused by information in two counts of violating subdivision 3 of section 337a of the Penal Code in that he did “willfully, unlawfully and feloniously . . . receive and hold certain monies ... of F. M. Jordan [Count 1; and of R. E. Kilkelly, Count 2] to be wagered upon the result of a . . . horse race.” He pleaded not guilty to both counts and waived a jury. The only wit

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nesses called upon the trial were Jordan and Kilkelly. No evidence was offered by the defense. The court sitting without á jury found defendant guilty as charged and sentenced him to the county jail for one year on each count, the sentences to run concurrently. He appeals from the judgments and order denying a new trial.

Section 337a, subdivision 3, of the Penal Code-, under which defendant was convicted, provides that: “Every person . . . Who . . . receives, holds, or forwards . . . any money, . . . or the equivalent or memorandum thereof, staked, pledged, bet or wagered, or to be staked, pledged, bet or wagered, or offered for the purpose of being staked, pledged, bet or wagered, 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 . . .’’is punishable by imprisonment in the county jail or state prison for a period of not less than thirty days and not exceeding one year.

The section is expressly made applicable not only to persons who may commit any of the acts designated in its several subdivisions “as a business or occupation,” but also “to every person . . . who may do in a single instance” any one of the prohibited acts. At the time of the transaction here involved (April 26, 1933), the “Horse Racing Act” (as amended in 1935; Deering’s Gen. Laws, Act 3421 [now div. 8, eh. 4, Bus. & Prof. Code]), which created certain exceptions to the general prohibitions contained in section 337a, had not been enacted. (See

In re Walker,

11 Cal.2d 464 [80 P.2d 990, 117 A.L.R. 825];

In re Goddard,

24 Cal.App.2d 132 [74 P.2d 818].)