People v. Schmidt

FOX, P. J.

Defendant was convicted of violating Penal Code, section 337a, subdivision 6 (accepting a bet). His motion for a new trial was denied. He has appealed from the judgment of conviction and from the order denying his motion.

On November 11, 1958, Officer Bovensiep, of the Los Angeles Police Department, received from Sergeant Cohen a telephone number, address, and apartment number, together with information that bookmaking was being carried on at said address. Officers Bovensiep and Riegel were instructed to check on the activities that were being conducted at such location. The address was 2016 Meridian Avenue, South Pasadena. They took along with them two officers from that city. Upon reaching the location, Bovensiep went to a telephone in one of the apartments on the lower floor. Riegel went to Apartment I, on the second floor, where bookmaking was assertedly being carried on, checked the door, came back down the stairs and stood outside the window of the apartment from which Officer Bovensiep was beginning to make a telephone call to the number that Sergeant Cohen had given him. The officers had agreed that if bets were accepted, Bovensiep would wave his hand, and if not, he would shake his head. A male voice answered Bovensiep’s call. Bovensiep said: “Larry, this is Charlie. Am I too late for the fourth?” The male voice replied, “No, you’ve got plenty of time.” Bovensiep then said: “In the 4th at Tanforan ‘My Bond’ 5 across; in the 5th ‘Broker’s Reward,’ 2 across.” Bovensiep waved his hand, whereupon Riegel started toward the entrance to Apartment I in response to that signal. Bovensiep continued:

[868]

“In the 6th . . At this point the male voice interrupted the officer and said: “Slow up, you’re going— slow up, I can’t write that fast.” The officer then repeated: “in the 6th, Tonco T-o-n-c-o, 5 across.” The male voice then asked, “Who is this?” Bovensiep replied, “Charlie.” At that instant Officer Bovensiep heard a loud noise and the phone was hung up. “My Bond,” “Broker’s Reward,’’ and “Tonco” were the names of horses that were scheduled to run at Tanforan on that afternoon, November 11th.

Riegel went up the stairs, pulled on the door and forced it open. When he entered the apartment defendant was standing next to the kitchen sink. The tap water was flowing, and the garbage disposal was running. After the telephone went dead, Bovensiep left the apartment and proceeded to Apartment I. As he entered he observed defendant, Riegel, and two officrs from South Pasadena. There was only one door through which one could enter or leave the apartment. Riegel observed no one come down the steps from defendant’s apartment from the time Bovensiep was talking on the telephone. Bovensiep searched the apartment and found the racing section of a daily newspaper under the cushion of the davenport in defendant’s living room. He also found a racing parlay manual in a dresser drawer in defendant’s bedroom. The officer checked the telephone number in the apartment and found that it was the same number that he had called. At approximately 2:05 the telephone rang. Officer Bovensiep answered it. A female voice asked for Larry. The officer replied, “Larry had to go out.” The phone was hung up. Some 10 minutes later a male voice asked for Larry. Bovensiep again replied that he had to go out and that he was handling the action. The male voice replied, “I had better call back when Larry is there,” and hung up. At approximately 3 o’clock Riegel answered the phone and a female voice identified herself as Winnie, and asked whether he was making any money today. She commented that she couldn’t hear the radio on, and said she wanted to split the action. Some 15 minutes later she called again inquiring whether he had any losers, and again wanted to split the action.