People v. O'Brien

YORK, P. J.

Appellant was found guilty by the court sitting without a jury of a violation of subdivision 2, section 337a, of the Penal Code, in that he kept and occupied an apartment for the purpose of recording and registering bets on horse races.

This appeal is prosecuted from the judgment of conviction and from the order denying a motion for a new trial upon the grounds: (1) That the evidence is insufficient to sustain said judgment; (2) that the trial court “essayed to usurp the functions of an appellate tribunal” which was evidenced by its declaration to the following effect: “When you submit a case on the (preliminary) transcript, you are submitting it to the same effect that a transcript would be submitted to an appellate court. In other words, the question of credibility is out and the sole question is as to whether there can be gleaned from the transcript sufficient evidence to warrant an ultimate conclusion of guilt.”

By stipulation the cause was submitted upon the transcript of evidence adduced at the preliminary hearing which consisted solely of the testimony of one of the arresting officers, Edgar A. Like. This evidence disclosed that said officer arrested “the defendants” about 2:15 in the afternoon of August 8, 1939, in an apartment containing three rooms located on an upper floor of an apartment house on North Vine Street in the city of Los Angeles; that the only person present in the front room of the apartment when said officer entered the place was a man named James Houghton, who was sitting before a table upon which some run-down sheets were spread out. Other betting paraphernalia, i. e., A. B. C. betting markers and inventories of the day’s business were introduced in evidence, the function of which with respect to bookmaking was explained by said Officer Like. In this connection, he testified that he checked the entries on the betting markers against the overnight run-down sheets, and “found that all of the numbers on the betting markers were numbers of horses running on this particular date”. He also testified that there were three telephones in the apartment (two ¿live and one

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dead), as well as a teleflash which was on the table before which defendant Houghton was sitting with a telephone receiver in his hand; that he did not see Houghton write on any of the papers and did not hear him say anything; that officer Morgan brought the “two defendants, Conterno and Louis” into the room and that the two officers then “questioned all four of them in there and continued our search and then took them down to the station”. The witness Like was then interrogated as follows: “Now have you told the court everything you saw or heard any of these three defendants do before they were placed under arrest ? A. I believe I have. Q. Well, after you put the defendants under arrest did you have a conversation with the defendant Houghton ? A. No, sir, officer Morgan questioned all of the defendants.”