People v. Allen

McCOMB, J.

Defendant appeals from a judgment of guilty of violating (1) section 337a, subdivision 2 of the Penal Code (occupying a room for the purpose of recording bets), and (2) section 337a, subdivision 4, Penal Code (recording or registering a bet).

Defendant concedes the sufficiency of the evidence to sustain the finding of guilty as to each count but contends:

First:

The offense of recording or registering a bet is a necessarily included offense with that of occupying a room, for the purpose of recording bets.

This contention is devoid of merit. Section 337a, subdivision 2 of the California Penal Code provides in part:

“Who, whether for gain, hire, reward, or gratuitously, or otherwise, keeps or occupies, for any period of time whatsoever, any room, shed, tenement, tent, booth, building, float, vessel, place, stand, or inclosure, of any kind, or any part thereof with a book or books, paper or papers, apparatus, device or paraphernalia, for the purpose of recording or registering any bet or bets, or any purported bet or bets, or wager or wagers, or any purported wager or wagers, or of selling pools, or purported pools, upon the result or purported result, of any trial, or purported trial, or contest, or purported contest, of skill, speed or power of

[747]

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; ...”

Section 337a, subdivision 4 provides in part:

“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; ...”

Section 337a of the Penal Code contains six subdivisions, and is so framed that one set or series of acts may constitute a violation of each or all of said subdivisions, and a violation of each subdivision constitutes a separate offense.