People v. Shelton

DOOLING, J.

Appellant was convicted by the court sitting without a jury of violating section 337a, subdivision 2, Penal Code, occupying a building with books, papers and

[588]

other paraphernalia for recording bets on horse races. He was sentenced to the county jail for one year, execution was suspended, and he was placed on three years probation on certain conditions.

Police officers went to the home occupied by appellant and his wife armed with a search warrant. They rang the bell, waited for one-half minute and then forced an entrance with a sledgehammer. The door was secured by a lock and had a timber braced against it on the inside.

The officers found the appellant burning papers in the kitchen. They extinguished the flames and the charred papers were later treated to bring out the writing. An officer testified that the writing on the charred papers showed them to be records of bets on horse races. Other papers commonly found in betting establishments were discovered elsewhere in the house and on appellant’s person.

The officers before breaking down the door did not comply with that portion of section 844, Penal Code, which reads: “after having demanded admittance and explained the purpose for which admittance is desired.”

The cases hold that where compliance with this provision would probably frustrate the arrest or permit the destruction of incriminating evidence compliance is not required.

(People

v.

Maddox,

46 Cal.2d 301 [294 P.2d 6] ;

People

v.

King,

140 Cal.App.2d 1 [294 P.2d 972];

People

v.

Sayles,

140 Cal.App.2d 657 [295 P.2d 579].) In view of the ease with which guilty persons may destroy records of bets (as appellant in fact was doing when the officers forced an entry into his home) we cannot say that the officers’ conduct in this case was not justified under the authorities cited.