People v. Johnston

[607]

WOOD, J.

Appellant and one Hazel Parker were accused by information of the crime of violating subdivision 6 of section 337a of the Penal Code, in that they “did . . . lay, make, offer and accept a bet and bets and wager and wagers upon the result and purported result of a trial ... of speed and power of endurance between beasts, to-wit, horses’’. At a trial before the court without a jury appellant was found guilty. She now appeals from the order denying her motion for a new trial. There is also a purported appeal from the “judgment’’.

The case was presented to the superior court upon the transcript of the testimony received at the preliminary examination, an unsatisfactory practice which has heretofore been condemned by both divisions of this court.

(People

v.

Fisk,

32 Cal. App. (2d) 26 [89 Pac. (2d) 142];

People

v.

Newland,

*

(Cal. App.) [97 Pac. (2d) 972].) Two police officers testified for the prosecution but no testimony was offered by the defendants. In his brief the attorney-general fairly sums up the testimony of officer Durham: “The defendants worked at the Crow’s Nest, a cafe and beer parlor at 205 East Vernon avenue, in the city of Los Angeles. On March 1, 1939, William Durham, a Los Angeles police officer, walked into the place and bought a glass of beer. The defendant Mrs. Parker was behind the bar waiting on customers. Some man came in and told Mrs. Parker that he wanted to make a bet with the other lady. He said, ‘She don’t know me. You know me and you will have to O. K. me’. Mrs. Parker then called the appellant, Carrie Johnston, and told her that she knew this man and that he was O. K. This man gave appellant a dollar and also the name of a horse. She asked some man there, who had a scratch sheet, the number of this horse and he replied, ‘729’, so she marked that down and then asked the man who had given her the dollar what name he would give and he said ‘Edith’, and she marked that down on a slip of paper. At this point Police Officer Durham walked up and said he wanted to place one dollar to win on ‘Jaw Breaker’. She turned around to the same man as before who had the scratch sheet