People v. Anderson

FOX, J.

Defendant was convicted of violating subdivision 2 of section 337a, Penal Code, in that he kept and occupied a residence at 715 E. Arbor Vitae, Inglewood, for the purpose of recording bets on horse races; he was convicted also on a second count of bookmaking in violation of subdivision 4 of the section. He appeals from the judgment

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of conviction and the order denying his motion for a new trial.

On October 18, 1955, at approximately 4:30 in the afternoon, Deputy Sheriff Allen took up surveillance of the dwelling in question. Soon after 5 o’clock defendant emerged and left in his car. About 9 o’clock that evening Officer Allen returned to the location. He found no lights on in the house and no other signs of activity. Allen resumed his surveillance shortly before 7 o’clock the next morning. Defendant arrived a little after 8 o’clock, entered the house, locked the screen and closed the front door.

During the morning of October 19th, Lieutenant Martin requested the telephone company to furnish him the listing of the telephone number ORehard 2-6263. He was advised that this number was listed at 715 Arbor Vitae, Inglewood. Sometime between 1:30 and 1:45 that afternoon Sgt. Johnson, with Officers Gentzvein, Wallace, Seltzer and Fowler, arrived in the vicinity of the above address. Officer Gentzvein

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had previously ascertained from a newspaper or scratch sheet that a particular horse was scheduled to run at a particular race track on that date. Gentzvein entered a public telephone booth, located at a gasoline station on the corner of Prairie and Arbor Vitae, and dialed OEchard 2-6263. Someone answered, “Hello.” The officer then said, “This is Bill for 5 in the 5th at B.M., Third Dawn, 5 to win, 5 to show.” The voice replied “OK.” At the time Gentzvein entered the booth Sgt. Johnson was some 20 feet to the rear of the Arbor Vitae house in an alley that runs on the east side of the property. After completing this call, Gentzvein signalled Officers Wallace and Seltzer. The officers then proceeded to the house.

Johnson and Wallace used a hearing-aid type of listening device at a rear window which was boarded up with plywood that had a series of quarter-inch holes from which artificial light appeared. Johnson overheard a voice from within say, “Hello, at Bay Meadows” and “I got you.” Johnson thereupon stated, “This is the vice detail” and demanded that the door be opened. He announced, “This is the Sheriff’s Department. You are under arrest for bookmaking.” Upon receiving no reply, he repeated, substantially, his announcement and demand. The officers then heard a scuffling noise right next to the window and smelled what appeared to be something burning. Johnson ordered Gentzvein and Wallace to enter through the door. Being unable to make such an entrance, Johnson ordered them to “try the wall just adjacent to the door.” They effected entrance in this fashion. They then assisted Johnson through the window, which he had broken after removing the plywood. He entered a small bedroom in the rear of the house. The room was furnished with two desks, two telephones, a radio, a metal barbecue-type brazier, and a stand with pencils, papers, and pads. The brazier was burning profusely and the smoke in the room was dense. Defendant, who was in this room, was arrested. Several small cards with penciled notations thereon were seized. These were betting markers. There was also a racing form of that date in the room. While the officers were there, the telephone rang several times. The callers were attempting to place bets on the races.