People v. Fisk

DORAN, J.

This is an appeal from a judgment of “Guilty” and from an order denying defendant’s motion for a new trial.

Briefly, the facts are as follows: Appellant, together with three codefendants, was accused in an information filed by the ' district attorney of keeping a room with books and

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papers for the purpose of recording and registering bets upon the result of horse races, in violation of section 337a of the Penal Code.

At the trial in the superior court a jury was duly waived by the four defendants, including appellant, whereupon it was stipulated that the issue should be submitted upon the transcript of the evidence adduced at the preliminary examination.

The transcript of the evidence heard by the committing magistrate reveals that only two witnesses testified at the hearing, namely, police officer Flannery and police officer Kolhoff.

Officer Flannery testified, in substance, that he found Fisk, appellant’s codefendant, back of a counter at the end of a room about 30 feet long by 15 feet wide, within which room a number of people were congregated; that he saw some of the occupants in the room handing Fisk money; that he heard one of these occupants say to Fisk: “I want to bet one dollar to win on ‘High. Most’ in the fourth race at Hollywood”; that appellant Lewis was sitting behind the counter at the other end thereof making notes on a piece of paper resembling what was introduced in evidence and marked as Exhibit “B”.

Officer KolhofE testified, in substance, that when he entered the room he saw Lewis behind the counter telephoning; that he arrested Lewis and Fisk, whereupon Lewis grabbed the money box or drawer, which contained $35.05; that he saw Lewis, who was in his shirt-sleeves, remove his coat from a coat-hanger.

Certain documents were also received in evidence at the preliminary hearing, none of which were explained or described in the record of the preliminary, or at the trial.

After the trial judge had read the transcript of the evidence given at the preliminary hearing above described, a motion to dismiss by defendants’ counsel was granted as to two of appellant’s codefendants who were thereupon adjudged “Not Guilty”. The defendant Fisk and the appellant Lewis then testified. Defendant Fisk testified that he, Fisk, was in charge of the “place”; that appellant Lewis was not employed there and had nothing to do with the operation of the establishment; that appellant Lewis had merely stepped back of the counter at the end to use the telephone when the officers