People v. Postma

69 Cal.App.2d Supp. 814 (1945) THE PEOPLE, Appellant,

v.

WILLIAM POSTMA et al., Respondents.

Civ. A. No. 6001. California Court of Appeals. Appellate Department, Superior Court, Los Angeles

June 21, 1945. Fred N. Howser, District Attorney, and J. J. Sullivan and A. Alexander, Deputies District Attorney, for Appellant.

William G. Kenney and William Mayhew for Respondents.

SHAW, P. J.

This is an appeal by the plaintiff from a judgment entered against it after the sustaining of a demurrer to the complaint. The complaint purports to be filed under section 325 of the Penal Code, which provides that "All moneys and property offered for sale or distribution in violation of any of the provisions of this chapter are forfeited to the state, and may be recovered by ... any action brought ... by any district attorney, in the name of the state." The provisions of the chapter referred to relate only to lotteries, which are defined by section 319, a part of the chapter, as follows: "A lottery is any scheme for the disposal or distribution of property by chance, among persons who have paid or promised to pay any valuable consideration for the chance of obtaining such property or a portion of it, or for any share or any interest in such property, upon any agreement, understanding, or expectation that it is to be distributed or disposed of by lot or chance, whether called a lottery, raffle, or gift-enterprise, or by whatever name the same may be known."

The question for consideration is whether the complaint shows that defendants were conducting a lottery, as so defined. It alleges that defendants were engaged in bookmaking on horse races which were run at various tracts in the United States. They had scratch sheets, betting markers and all the usual paraphernalia of such a place. "[P]ersons known as [69 Cal.App.2d Supp. 816] bettors ... would select horses upon which horses such bettors would then lay, make and place bets in money. Said defendants would then accept such bets and wagers." Bets were placed on a horse to "win," "place" or "show," and defendants made a record of them. Although the complaint does not directly so allege, apparently the amounts bet by these bettors were deposited with the defendants, for "All money bet on horses not completing the races as indicated by the bettors was kept by the defendants." The odds or prices paid bettors making bets on winning horses were determined at the race tracks at which the respective winning horses raced. The description of the manner in which this was done at the tracks shows that it was by what is commonly known as the pari-mutuel system. These odds or prices were relayed to defendants and they "would then, in cash, pay a similar price to such bettor who had bet on the winning horses." It is obvious from the allegations above reviewed that defendants paid the winning bettors the amounts determined at the tracks, regardless of the total amount of the bets placed with them, and even though on any particular race such amount was not sufficient to pay the winners.