People v. Meade

DRAPEAU, J.

Defendant was charged in two counts with violations of subdivisions 1 and 6 of section 337a of the Penal Code, to wit: pool selling and bookmaking; and making, offering and accepting bets on horse races, respectively.

Upon arraignment defendant’s motion to set aside the information under section 995 of the Penal Code was denied; he entered his plea of not guilty, waived a jury trial and the cause was submitted on the transcript taken at the preliminary hearing. The court found defendant not guilty on count II and guilty as to count I, and denied his motion for a new trial.

Thereafter judgment and sentence were pronounced. Execution of the sentence was suspended and defendant was granted probation for a term of two years on condition that he pay a fine of $200 and follow the directions of the probation department.

This appeal is taken from the judgment of conviction, the verdict, the sentence and the order denying defendant’s motion for a new trial. Since there is no appeal from a verdict or a sentence

(People

v.

D’Elia,

73 Cal.App.2d 764, 766 [167 P.2d 253];

People

v.

Clark,

106 Cal.App.2d 271, 273 [235 P.2d 56]), those appeals must be dismissed.

Two points are made upon this appeal, to wit:

1. The evidence is insufficient to justify the conviction ;

2. Where the facts tended to show a violation of one subdivision of section 337a, and appellant was acquitted on that count, those same facts cannot be used as a basis for finding appellant guilty of violating another subdivision of the same section.

The only witness produced at the trial was Police Officer Paul C. Ward. It was stipulated that he was an expert in all phases of bookmaking as conducted in Los Angeles County. And, in answer to the question, “Officer, what books, papers and paraphernalia are commonly used by bookmakers in this county?” he testified, “Pencils and papers, scratch sheets, racing forms, daily newspapers, California Digests, telephones, sometimes adding machines, clocks.”