People v. Grayson

SHINN, Acting P. J.

Appellant was convicted in a jury trial of receiving and holding a wager on a horse race, and of a separate offense of recording and registering a wager on a horse race, in violation of subdivisions 3 and 4 of section 337a, Penal Code. He appeals from the judgments, specifying insufficiency of the evidence, erroneous rulings in the admission of evidence, errors in the instructions and alleged misconduct of the prosecutor.

The attack upon the sufficiency of the evidence assumes, as the trial court held, that the prosecuting witness, one Pease, was an accomplice of appellant in each of the offenses charged. This is also the basis of the criticism of the instructions and several of the questioned rulings. The question whether Pease was an accomplice will be considered separately, as to the two counts.

Pease testified that on November 13, 1946, he telephoned appellant and placed a bet of $100 to “win, place and show,” $300 in all, on the horse Barging Rose, which ran that day at Bay Meadows, and that on November 21, 1946, he placed another $30 bet with appellant on the horse See-Tee-See, also running at Bay Meadows; that Barging Rose won; that he met appellant by appointment in the evening of November 13, that appellant handed him $100 and a few days later

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gave him a check for $725, dated November 28, 1946, and another check for $500 dated November 29, 1946, as his winnings on the race. He also testified that the cheeks were postdated. They were dishonored when presented for payment. There was nothing on the cheeks to connect them with a wager or any other previous transaction between appellant and Pease. They were identified with the betting transaction only by the testimony of Pease.

The first question is whether one who places a bet on a horse race is an accomplice of one who receives, holds or forwards the bet, which is made an offense by subdivision 3 of section 337a. By section 1111, Penal Code, an accomplice is defined as “one who is liable to prosecution for the identical offense charged against the defendant on trial in the cause in which the testimony of the accomplice is given. ’ ’ If subdivision 3 of section 337a alone were to be considered, Pease would have been liable to prosecution as a principal under sections 31 and 971, Penal Code, for aiding and abetting appellant in the offense of receiving a bet. However, subdivision 6 of the section makes the placing of a bet a separate offense and the acts of Pease, according to the evidence, were only those which constituted a violation of this subdivision. It was held in