People v. Rubin

SHINN, P. J.

In a trial to the court Max Rubin was convicted on two counts of violation of section 337a(3) of the Penal Code. Defendant’s motion for a new trial was denied and he appeals from the judgment and the order, attacking the sufficiency of the evidence to. sustain the conviction.

Peter Janowiez, a Los Angeles vice squad officer, was the only witness for the People. He testified that on October 25, 1951, with another officer, he entered a café on West Sixth Street and watched defendant, who was walking among the customers, and on occasions was approacched by and conversed with unknown persons. They would then look at a scratch sheet and at the end of the conversation money would pass. On the preceding day he observed defendant for an hour and one-half in the same café and again on numerous occasions defendant was approached by unknown

[187]

persons; they would look at a scratch sheet and money would be transferred. On one occasion an unknown person said “Five across on Moon Tip, fourth at Tan” and gave defendant $15. Another man said to defendant “Five across on La Jolla Hiker” and handed defendant $15. A third person said to defendant “Four and Four on Dan Shamrock” and handed defendant some money. After the conversations defendant would go to a telephone, deposit something in the coin box and carry on a conversation. Moon Tip and Dan Shamrock were horses running at Tanforan on October 24, 1952.

Defendant testified that he took no bets but did talk to several people in the busy bar and that $15 was given to him by a Mr. Josephi. Mr. Josephi testified that he gave defendant $15 in repayment of a loan. The officer had no conversation with defendant, nor did he find any scratch sheets or betting markers in defendant’s possession, and he heard none of the telephone conversations.

Defendant cites

People

v.

Rabalete,

28 Cal.App.2d 480, 487 [82 P.2d 707], and

People

v.