People v. Harper

FOX, J.

Defendant Harvey W. Harper, formerly sergeant on the Los Angeles Police force, and his wife, Margaret, were convicted of violating Penal Code, section 337a, subdivision 2 (keeping and occupying a place with papers and paraphernalia for the purpose of recording bets), and also subdivision 4 thereof (recording bets). They appeal from the ensuing judgments and the orders denying their motions for a new trial.

On January 4, 1952, at about 1:45 p. m., police officers entered the residence of defendants without a search warrant. Officer Mullins, who entered from the rear, observed Mrs. Harper rise from a chair which was next to a table upon which was a telephone, a scratch sheet, and numerous pieces of yellow, lined paper on which there were pencil notations. These were identified at the trial by an expert in bookmaking practices as betting markers. Approximately 168 bets were recorded on these markers on horses running at various tracks throughout the United States on that day. Other betting markers covering previous dates were found in a rear bedroom where there was another telephone.

Upon the arrest of Mrs. Harper by Officer Mullins he took her into the front room where the other officers had already placed Harvey Harper under arrest. In response to a question as to the identity of the codefendant who was sitting on the divan Margaret replied that she had never

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seen the man before. He informed the officers, however, that she was his wife. Officer Mullins had his hand on Margaret’s arm but not in a holding or pulling manner. Mr. Harper told him to take his hands off his wife, jumped up from the divan and came at him. When Mullins saw Harper coming toward him he turned to meet him. When the latter placed both hands on his shoulder, Mullins, who feared Harper was going to either strike him or shove him, hit Harper three or four times. Another officer also hit Harper, who was immediately handcuffed. He was not thereafter struck.

Mr. Harper testified that when he and his wife were at the police station on the evening of January 4th a Sergeant Brown told him that if he would resign from the police department there would be no prosecution. He admitted, however, on cross-examination, that he was told the matter would have to be submitted to the district attorney’s office as to whether or not there would be any prosecution but that usually under such circumstances the district attorney does not prosecute. Thereupon Harper resigned from the police department. The Harpers were then released and returned to their home. They were, however, requested to, and did, furnish exemplars of their handwriting which were later introduced in evidence in this ease. About noon the next day (Saturday) the defendants were rearrested and booked. On that occasion Mrs. Harper gave two additional exemplars of her handwriting.