People v. Whyte

JEFFERSON, J.

The People appeal from an order granting defendants’ motion to set aside an information under Penal Code section 995 charging defendants with bookmaking in violation of section 337a of the Penal Code in three counts, subdivisions 1, 2 and 4. The People concede as to defendant Gillett, the evidence was not sufficient as to count III.

Taylor L. Searcy, one of the arresting officers, testified as follows: Approximately 20 days prior to the arrest of defendants he was furnished with a formal vice complaint from one of his superiors showing that an anonymous source of information had stated that telephone number DUnkirk 31524 was being used for illegal purposes, to wit, bookmaking; the person answering the phone was using the name of “Whitey” and that it was in Apartment 34 of 230 South Coronado; during the 20 days prior to the arrest, this officer had put the Dunkirk number through the telephone company and had determined that this number was registered to a Lee B. 0 ’Neal; prior to making the arrest of defendants, he checked the mail box at the above location and saw the name “Marshall C. Whyte” on the mail box for Apartment 34; and he

[643]

also had learned defendant Whyte had a previous bookmaking arrest.

Officer Searcy further testified: He dialed DUnkirk 31524 and a female voice answered the phone; he stated to her he had been betting with Bill at the bar and Bill told him if ever he could not get in touch with him he was to phone this number and ask for Whitey, and he would be given a phone number where he could place some bets; he called the phone number and asked, “Is Whitey there?” A female voice stated, “Whitey isn’t here, but I expect him to phone back in about ten minutes. Who is this Bill?” The officer said, “It is Bill Citron.” The female voice said, “Where do you know him from ? ’ ’ The officer stated Bill was the owner of the bar down here and the female voice said, “Do you mean the Squeeze Inn?” The officer stated, “Yes.” The female voice said, “Well, I am not sure I know Bill by that name. You will have to wait until Whitey calls back and I will ask him. What is your name?” Officer Searcy further testified he told her his name and then stated he wanted to get down on the seventh race at Golden Gate and could she go ahead and take the action and wait and then when Whitey phoned in have him verify it. The female voice stated, “No, I can’t take it that way and it is 3:30 now so you won’t be able to make it for the seventh. You had better call back after a while.” At this time the female hung up. Approximately 15 minutes later the officer again called the same number. The female voice answered again and he stated who he was and asked if Whitey had phoned. The female stated he had not and the officer asked her how he was going to get some bets down. He said that it was getting late. She said, “Well, I don’t know. If you have been betting with Bill why don’t you give it to him?” The officer stated he wasn’t at the bar and didn’t know where to get in touch with him. The female said, “Well, I don’t know what you are going to do.” The officer stated, “Well, if I call Lee and have him say that I am all right, will you take it then?” The female said, “Lee who?” The officer said, “Lee O’Neal.” The female said, “Well, he is at the bar now,” and she gave him the telephone number of the bar and said, “If you call him and he says it is all right, then it will be OK and I will take it. ’ ’