People v. Lomento

FOURT, J.

In an information filed in Los Angeles County, the appellant was charged with violating subdivision 1 (bookmaking), and subdivision 6 (making and accepting bets), of section 337a, Penal Code.

Appellant pleaded not guilty and the case was submitted on the transcript of the testimony taken at the preliminary hearing. Appellant was found guilty on both counts, probation was denied and he was sentenced to the county jail for three months on each count, the sentences to run concurrently. Appellant has appealed from the judgment, and has purportedly appealed from the sentence.

On January 25, 1957, at about 1:40 o’clock p.m., Officer S. A. Trotsky of the Los Angeles Police' Department went into a bar in San Pedro, called the Mission Smoke House. Trotsky saw the appellant and an unknown person enter the bar by the back door. The officer was about 15 feet from them when the unknown person was looking at the National Daily Reporter (a publication which contains a list of all of the horse races at the various tracks in the United States), commonly called a “scratch sheet,” and then said to the appellant, ‘ ‘ Give me Miss Bulldozer to win. ’ ’ Appellant replied, ‘

‘

What’s the number?” The unknown person then looked at the “scratch sheet” again and said, “Four and Five.” The unknown person gave appellant two pieces of currency and appellant and said person then left by the back door.

Trotsky qualified as an expert in bookmaking activities in Los Angeles County, and stated that in his opinion the unknown person’s reply of “Four and Five,” to appellant’s question referred to a horse, “Miss Bulldozer,” entered in the fourth race in the fifth handicap position. A National Daily Reporter for January 25, 1957, set forth that a horse named Miss Bulldozer was to run in the fifth pole position in the fourth race at Santa Anita on that day. Trotsky also testified that in Los Angeles County bookmakers or others accepting bets on horses kept a record of the bets accepted by numbers. Appellant did not testify nor offer any evidence in his own behalf.

[742]

Appellant contends that:

(1) The evidence is insufficient to sustain the judgment as to count I, and as to count II, and