People v. Torrey

MARKS, J.

This is an appeal from an order denying appellant’s motion for new trial. He was charged by an information filed by the district attorney of San Bernardino County with violation of the following provisions of section 337a of the Penal Code:

“Every person . . . who, whether for gain, hire, reward, or gratuitously, or otherwise, at any time or place, records, or registers any bet or bets, wager or wagers, upon the result, or purported result, of any trial, or purported trial, or contest, or purported contest, of skill, speed or power of endurance of man or beast, or between men, beasts, or mechanical apparatus, or upon the result, or purported result, of any lot, chance, casualty, unknown or contingent event whatsoever ; ... is punishable by imprisonment in the county jail or state prison for a period of not less than thirty days and not exceeding one year.”

Appellant was convicted, his motion for new trial was denied and this appeal followed.

The particular violation of the provisions of the section which we have quoted consisted of accepting and registering bets on horse races which were being held at the race track near the city of Arcadia in Los Angeles County. The bets were accepted by appellant at the Pastime Club in the city of Ontario in San Bernardino County. He maintains that he transferred the bets to the 322 Club in the same city, which club telephoned them to its representative in the city of Arcadia. It is contended that the representative of the 322 Club in Arcadia then took the bets into the race track where they were placed in the pari-mutuel machines by another representative of the club.

[472]

Appellant maintains that the information failed to charge him with the commission of a public offense, and that the evidence failed to prove him guilty of any offense. He bases this contention upon the theory that pari-mutuel betting was legalized under a constitutional amendment which effected a repeal of those provisions of section 337a of the Penal Code, which prohibited all forms of betting and registering of bets on horse races.

It is evident from the mere reading of. the quoted provisions of section 337a of the Penal Code that it prohibited all betting and registering of bets on horse races. In 1933 the legislature adopted an act which would permit parimutuel betting on horse races. (Stats. 1933, chap. 769.) This act took effect upon the adoption by the people of section 25a, article IV, of the Constitution on June 27, 1933. This act permitted pari-mutuel betting on horse races conducted on duly licensed tracks where the wagers were made and placed within the enclosures containing such tracks. In 1935 section 3 of the act was amended by the addition of the following provisions: