People v. Roche

STURTEVANT, J.

The defendant was charged with having violated the provisions of section 337a of the Penal Code,

[667]

subdivisions 2, 4 and 6 thereof, on the 6th day of June, 1944, in the city and county of San Francisco. The charges relating to subdivisions 4 and 6 were dismissed and after a plea of not guilty the case proceeded to trial before a jury on the first count alone. The defendant was found guilty and sentenced. From the judgment he prosecutes this appeal.

The defendant complains because the trial court refused to give an instruction which was as follows: “You are instructed that the evidence of police officers is to be judged by the same standards and the same rules of evidence as any other witnesses, and that police officers are not entitled to any greater credence than any other witness, and you are not compelled to decide in favor of the prosecution because the case is presented by the people through police officers.” We think there is no merit in that claim. True it is that on the trial no witnesses were called by the defendant and that the prosecution called two witnesses only. One was Clement J. Dougherty, a police officer assigned to the bureau of special services which performed the function of making arrests in connection with vice conditions and bookmaking establishments. The other witness was Walter J. Francis, a police officer for over twenty-two years who was assigned to the same department. Both witnesses were examined and cross-examined. They detailed facts to the effect that on the 6th day of June, 1944, in the city and county of San Francisco, the defendant did keep and occupy an automobile in a parking lot at 145 Taylor Street, with books, papers, apparatus, device and paraphernalia for the purpose of recording and registering bets and wagers and of selling pools upon the result of speed between horses. Bach witness delineated what he saw and heard. Neither witness gave any testimony that was improbable, impossible, or in conflict with any physical fact. The State contends that the requested instruction was covered by other instructions which were given. We think that contention is well founded. Among others the trial court gave the following instruction:

“You are instructed that the plea of not guilty raises all of the material issues in this case, and that the presumption of innocence applies and continues throughout the case, and until your verdict overcomes it by an adjudication of guilt.