People v. Battaglia

[477]

WOOD (Parker), J.

Defendant was accused of violating section 337a, subdivision 2, of the Penal Code, in that, he did unlawfully keep and occupy a room with books, papers, and paraphernalia for the purpose of recording and registering bets on horse races. Trial by jury was waived. Defendant was adjudged guilty. His motion for a new trial was denied. Upon the hearing of defendant’s application for probation, proceedings were suspended and defendant was granted probation upon the condition that he serve two months in the county jail. His notice of appeal states that he appeals from the judgment and from the order denying his motion for a new trial. Since judgment was not pronounced, the purported appeal from a judgment will be dismissed.

(People

v.

Steccone,

36 Cal.2d 234, 235 [223 P.2d 17].)

Appellant contends that the evidence is insufficient to support the decision of the court.

It was stipulated that the judge might consider the testimony given at the preliminary examination. The case was submitted upon that transcript, the exhibits referred to therein, and the testimony given by defendant at the trial.

On November 8, 1950, about 11:30 a.m., an investigator for the district attorney, a deputy sheriff and two employees of the telephone company went to a vacant store building at 3517 Bast Slauson Avenue in Maywood and found therein four telephones—two main lines and two extensions. The “ringers” (or telephone bells) were either disconnected or cut. About 2 p.m. on that day, the investigator and the deputy sheriff went to an apartment building at 5890 Maywood Avenue which is just around the corner and about 150 feet from the vacant store building. When they entered the kitchen of apartment 17 in that building, they saw the defendant sitting at a table and he had a telephone receiver in his hand. Upon the table there were several pieces of blank paper, a pencil, a scratch sheet, and two telephones from which the number plates had been removed. He was alone in the apartment. On the stove in the kitchen there was a radio which was not turned on. In the drawer of the stove there was a piece of white paper, approximately 7 inches by 12 inches, upon which there was pencil writing. The defendant said he had been in the apartment two days, that no other person had been in there on that date, that he had rented the apartment from a fellow known to him as “Powers” for $70 a month, and that Powers gave him a key to the apartment. The defendant handed a key to the investigator who unlocked