People v. Aragon

FOURT, J.

This is an appeal from an order denying the defendant’s motion for a new trial and from a “probation order” denying probation to the defendant.

The defendant was accused in an indictment by the grand jury of Los Angeles County of a violation of section 337b, Penal Code, in that he did, in substance, about December 7, 1956, unlawfully offer to give a sum of money to Dick Gold-stein with the intention and understanding that Goldstein would not use his best efforts to win a certain boxing contest, in which contest each of them was to participate, and with the further understanding that Goldstein would so conduct himself as to assist and enable Aragon to "win the boxing event. The defendant was found guilty by a jury and thereafter made a motion for a new trial upon all of the statutory grounds which such motion was denied. Probation also was denied although recommended by the probation officers (because, as the judge said, the defendant “fails to recognize that he has a problem,” and because the defendant, after the verdict, in a letter, stated, “I deny I offered him money to lay down to me”), and the defendant was thereupon sentenced to the state prison for the time prescribed by law.

[648]

A substantial résumé of the facts as developed by the evidence is as follows: Aragon has been a professional prize fighter for about 14 years, and has had about 100 fights, losing fifteen or seventeen and winning over 50 of them by knockouts. On December 7, 1956, he was rated number three in the welterweight division. Aragon was scheduled to fight an unrated colored boxer by the name of Tyler in San Antonio, Texas, on December 18, 1956. After the fight had been scheduled the promoters determined that under the circumstances as they then existed in Texas, Tyler would not be a suitable opponent. Tyler thereupon was cancelled out as a contestant for that occasion. It appears that Willie Ginsberg, who has to do with a gymnasium in Los Angeles, was contacted by the Texas promoters for assistance or suggestions in securing a replacement of Tyler as an opponent for Aragon for the fight on the 18th of December. Apparently Ginsberg contacted Aragon with reference to the matter. Aragon stated that Ginsberg told him that Goldstein would be his opponent.

Richard Goldstein was a part-time employee in a liquor store and part-time prize fighter, and former part-time sparring partner of Aragon, of the same weight class. He stated that on December 7th, Aragon called him on the telephone and talked to him about the fight. On direct examination he said that Aragon asked him if he would like to fight him in Texas and make some money for Christmas, and that he, Goldstein, replied that he would like it, and that Aragon then said, “Remember one thing. You have to go out in four rounds.” On cross-examination Goldstein stated that Aragon told him in the telephone talk that the fight with Tyler was off and that he inquired if he, Goldstein, would like to take the fight and he, Goldstein, said that he would and was then told by Aragon to come out to his house in North Hollywood and they would talk it over. On further cross-examination of Goldstein the question was put to him: “. . . On the telephone he didn’t say anything about a fix or bribe or dive or third or fourth round, is that correct?” and Goldstein answered, “Nothing.” Later Goldstein testified that he did not recall anything about a fourth round being mentioned in the telephone talk and that he did not recall that anything was said about “taking a dive” in the telephone talk. It was also brought out that the witness had testified to still another version of the telephone conversation when he was before the grand jury.