People v. Kozakis

McCOMB, J.

From a judgment of guilty of violating section 337a, subdivision 3 of the Penal Code

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after trial before a jury, defendant appeals. There is also an appeal from the order denying his motion for a new trial.

Defendant urges the judgment should be reversed on two grounds, neither of which is tenable: First: that the court erred in receiving remote and prejudicial evidence; and Second: that the evidence presented showed that defendant was entrapped into the commission of the crime by a police officer.

Facts:

Officer Xydias on October 26, 1949, entered defendant’s coffee shop and card club. The officer was dressed in working clothes and had received, prior to his entering defendant’s premises, a five dollar bill the serial number of which he and his partner, Officer Drake, had noted.

Upon entering the shop, Officer Xydias asked defendant if he knew anyone that might have a job open for a cook. Defendant replied that he did not, whereupon Officer Xydias went to the back of the premises and proceeded to play pinochle. While playing cards he noted several men hand defendant money with a little slip of paper folded in it, after which defendant placed the money in his pocket and made a telephone call.

[664]

After playing cards for some time Officer Xydias took a newspaper to the front counter of the shop and opened it to the racing form portion. Defendant came up to him and said, “Well, you better take that away, it doesn’t look so good up front here. There might be someone looking.” The officer then went back to a table and tore off a corner of the newspaper. On the piece of paper he made the notations, ‘ ‘ B.M.7— ‘Not Very Much’ 2w” with his initials “T.X.” He explained that “B.M.” stood for Bay Meadows, the “7” for the seventh race, “Not Very Much” for the name of a horse running in the 7th race at Bay Meadows that day, and the “2w” for two to win.

He then handed the premarked five dollar bill and the slip of paper to defendant who opened it, read it and said, “Two to win ? ’ ’ Defendant put the five dollar bill in his pocket and gave the officer three one dollar bills. Officer Xydias then left the shop and shortly returned with Officer Drake and placed defendant under arrest. Among the money found in defendant’s pocket was the five dollar bill given him by Officer Xydias. There were two blank checks found near the cash register in the shop which had pencil writing on the reverse side.