People v. Partee

STURTEVANT, J.

The defendant was duly informed against, tried and convicted of violating subdivision 2 of section 337a of the Penal Code. He has appealed from the judgment. Before stating his points it will clarify the case to recite some of the facts.

On the 24th day of May, 1944, Thomas M. Cole and Walter V. Heagney, police officers of the city and county of San Francisco, visited the place known as 83 First Street. Fronting on said street the premises consist of a cigar store and back of the cigar store is a large room 50 x 20. In that room there is a counter about 18 feet long running lengthwise of the room. Over the counter is a pipe running lengthwise of the counter and a few feet above it. At the time the police officers entered the room there were suspended from the pipe three “turf digest” or “run down” sheets with the names and initials of horses and the post positions of the horses in each race. Said sheets designated the horses and races that were being run on said 24th day of May, 1944. Certain horses on the run down sheets were circled to show which horse won. After another horse-a figure “2” was marked to show that that horse ran second, and after another horse was marked the figure “3” showing that that horse ran to show. All of the run down sheets were dated May 24, 1944. At the bottom of the run down sheets were the prices showing what each horse paid. The run down sheets were on cardboard and one was turned toward the audience and the other sheet toward the defendant who was standing behind the counter. While the officers were present they heard the defendant say, “You better place your wagers before we close the race.”

[738]

At about that time a naval chief petty officer stepped up to the counter and asked to bet on 328, $1.00 to place and $1.00 to show. At the same time he placed $2.00 on the counter. The defendant placed the money on a rack under the counter and at the same time he wrote out a card and placed it under the counter. Officer Cole stepped up and asked defendant for the card. The defendant stated he could not find it and Cole then asked for a copy. Thereupon "Partee prepared a card and handed it over to Cole as a copy. Such facts were testified to by Cole and also by Heagney. The three sheets just mentioned and also the card were received in evidence. Although the defendant was present he did not take the stand as a witness nor did he call any other persons as witnesses. The officers and Partee then stepped into an adjoining room where there were some tables and chairs. Murray Kleinstein and another whose name was not disclosed were present. On the table were twenty-four cards. Cole asked, “Is that a record of today’s bets?” Cole also asked if they wanted copies. Partee interposed directing Kleinstein to make the copies which Kleinstein did. Those twenty-four cards were also admitted in evidence. The card first mentioned was similar in form to the other twenty-four cards just mentioned.