People v. Kabakoff

MOORE, P. J.

Defendant appeals from an order denying his motion for á new trial and from the judgment of conviction. He was accused by information with violations of section 337a of the Penal Code as follows: Count I for violation of subdivision 1; count II for violation of subdivision 2; count III for violation of subdivision 6. Trial by jury was waived. He was found not guilty on counts I and III but he was convicted under count II of a violation of subdivision 2 hereinafter quoted. His motion for a new trial having been denied, he was sentenced to the county jail for 180 days, which sentence was suspended and probation granted for three years under specified conditions.

The facts are substantially as follows: On October 12, 1940, two police officers entered apartment 207, located at 726 North Van Ness Avenue, in the city of Los Angeles, at about 2 o’clock in the afternoon. It was a single apartment consisting of a combination living room and bedroom, with kitchen and bath adjoining. Upon entry the officers found appellant alone in the apartment, dressed in his trousers but without a shirt. On the kitchen table the officers found the following: two telephones, one bearing a

Hillside

number,

[172]

the other a

Granite

number; betting markers on which numerous notations recorded horse, racing bets; two scratch sheets giving notice of different races at different tracks and the names of the horses and jockeys and their weights and the probable odds and post positions. One of the scratch sheets bore the date of October 5th and the other of October 12th. Officer Barry testified that this paraphernalia was that commonly used by bookmakers. The telephones rang. Officer Barry had two telephonic conversations in each of which he was requested to place a bet on a certain horse. The officers thereupon placed appellant under arrest.

On the trial appellant testified that he had occupied this apartment for two weeks prior to the date of his arrest “to sleep there”; that a party named “Brownie” granted him the free use of the apartment; that it was his residence and that he slept there and was there every day during the two weeks. He denied all connection with the acceptance or writing of bets, or that he “forwarded” any of them, or that he had ever seen any bet recorded or that he knew what the apartment was used for. He had come up to the apartment on that afternoon to take a shower.