People v. Castaldia

[570]

McCOMB, J.

Defendant appeals, after a jury trial, from (1) a judgment finding him guilty of accepting a bet on a horse race, contrary to the provisions of section 337a, subdivision 6, of the Penal Code, and (2) an order denying his motion for a new trial.

IP acts:

During the

voir dire

examination of the jury, juror Angela R. Kennedy, in response to questions of defendant’s counsel, stated that there was nothing in the nature of a bookmaking case to cause her to hesitate to sit as a juror; that if some of the evidence took place in a bar it would not prejudice her in any manner; that she would not suffer herself to be biased against defendant; that she would consider the case solely on the evidence; and that she felt she could keep a free and open mind until all the evidence was in.

During the

voir dire

examination of juror James Russell, he stated that the fact that the case might involve gambling or that some of the events might have taken place in a barroom would not prejudice him and that he would answer the questions asked Mrs. Kennedy the same way she had.

A verdict finding defendant guilty was returned on May 22, 1957. He made a motion for a new trial, and in support of his motion for a new trial filed three affidavits.

One was by his counsel, reciting that on July 8, 1957, Angela R. Kennedy, one of the jurors who heard the case and returned the verdict, had related the following facts to him: During her service as a juror on the case, she commuted from her home to court and returned by bus. In returning to her home from court she transferred at Sixth Street and Harbor Boulevard in San Pedro. After transferring at that point at the close of the first day of the trial and while waiting for the bus to depart, she had a conversation with the bus driver, named Joe, with whom she had been acquainted for more than ten years. During the conversation she told him she was a juror in a bookmaking case, the defendant was Joseph Castaldia, the case arose out of bets allegedly made in January 1957 at the Bamboo Hut and Bank Café in San Pedro, and she was going to stop at those establishments some time and find out what kind they were. The driver told her there were a great many bookmakers at almost, any establishment in the area and that during January 1957 the police had arrested a number of bookmakers there. She told affiant she did not remember the exact number of bookmakers the driver told her had been arrested, but she believed it was either 14 or 17.