People v. Smith

MOORE, P. J.

Defendant appeals from a conviction by the court for violating subdivision 2 of section 337a of the Penal Code, which forbids the keeping of any place of any kind with a book, paper or device for the purpose of registering any bet upon the result of any contest between beasts, etc. In the same information, he was accused of violating subdivision 3, that is, of holding money wagered upon the result of such a contest, of which he was found not guilty. Since his appeal is founded upon a contention of the insufficiency of the evidence, a

résumé

thereof follows:

Defendant operated a news stand in the heart of the business district of the city of Los Angeles at the side of one of the large office buildings. The stand extended from the corner of the building and along its side adjacent to an alley.

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It consisted of news racks about ten feet high and one hundred fifty feet long. Maintaining an extensive stock of magazines and foreign newspapers, defendant had operated the place for sixteen years. He kept two telephones, one on each side of his cash register, on his desk. The record is devoid of his ever having taken bets before.

On the morning of April 18, 1939, one Dougherty, a police officer of said city, observed an elderly lady enter said news stand, holding a scratch sheet and obviously placing a bet, and at the same time a man did place a bet. Defendant served both parties. The officer then heard defendant converse over his own telephone, giving the numbers of the horses, the amounts of the bets and the initials of the two persons above mentioned. The numbers given by the two patrons were numbers which represented two different horses running at two different tracks on said day. Returning in the afternoon, said officer observed one Chapman inspecting a scratch sheet on defendant’s said desk; heard said Chapman ask defendant to give him “683 to place”, accompanying said request with the delivery of a ten-dollar bill to defendant. Upon his arrest, defendant, addressing said Chapman, called out “Charlie, you didn’t make a bet with me, did you?” to which the said Chapman replied: “Well, let’s skip it.” Upon his arrest, defendant had a scratch sheet and several betting markers upon his person with various notations of horses and bets. The possession of said paraphernalia, namely, the scratch sheet and telephones, taken in connection with the other circumstances above detailed, was sufficient to warrant a conviction.