People v. Foreman

SHINN, P. J.

Defendant was charged by information with violation of subsections 1, 2, 3 and 4 of Penal Code, section 337a. Before trial, on motion of defendant, the counts as to subsection 1 (bookmaking) and 3 (receiving, holding, or forwarding money or memoranda referring to money bet) were dismissed on motion for insufficiency of evidence under section 995, Penal Code. The cause was submitted on the transcript of the preliminary hearing, neither party offering witnesses. Defendant was found not guilty of violation of subsection 4 (recording or registering a bet) but was found guilty of violating subsection 2 (keeping or occupying a place with -papers or paraphernalia for the purpose of recording or registering a bet). Probation was granted and defendant appeals from the order denying his motion for a new trial.

Stating the evidence most strongly in favor of the judgment of conviction the record shows: Defendant was arrested June 13, 1951, by Deputy Sheriff Belong at the Paddock Cafe on Florence Avenue in Los Angeles. At the time of arrest defendant was at the bar in the main room of the cafe. The building contains a rear room separated by a locked door from the main room. Search of defendant’s person by the deputy disclosed four slips of paper bearing names and numerals in decimal form opposite each name, a blank scratch pad of the same kind of paper, two pencils and three jackets for nickels, dimes and pennies. When asked for a key to the back room defendant denied he had one but further

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search revealed two sets of keys and a key on one set opened the door to the hack room. Defendant stated that the key belonged to the janitor, he had only borrowed it to go to the back room to telephone his wife. There was a telephone in the main room. Lelong and defendant entered the back room and there the deputy took a sheaf of 31 slips of paper from a cardboard box. These slips were betting markers, having recorded thereon initials or nicknames of bettors, names or symbols for horses, and figures indicating bets for win, place and show. None of the horses listed was running June 13, 1951. Deputy Lelong asked defendant if any of the slips were in his handwriting and defendant replied in the negative.

Albert Leacock was also a witness at the preliminary hearing but testified to nothing that happened on June 13th nor to anything connected with a violation of section 337a(2). Furthermore, Leacock’s testimony was so equivocal as to result in the dismissal of the charges under subsections 337a (1) and (3). Leacock had sworn out a complaint stating he had once given defendant a $2 bet but while testifying repeatedly stated he made a bet with another person who looked like defendant. After persistent pressure by the Deputy District Attorney Leacock said he placed a $2.00 losing bet with defendant sometime in 1951.