People v. Decker

FOURT, J.

This is an appeal from a judgment of conviction on two counts under the bookmaking statutes.

In an information in Los Angeles County, appellant was charged in count I with a violation of subdivision 1, section 337a, Penal Code (engaging in bookmaking upon the result of a horse race), and in another count with a violation of subdivision 6 of the same section (lay, make, offer and accept bets upon the result of a horse race). He was also charged with two prior felony convictions in New York with service of prison terms therefor. Appellant pleaded not guilty and denied the prior convictions. At the trial a jury was waived and the cause was submitted on the transcript of the preliminary hearing and the testimony of a police officer for the plaintiff. Appellant did not testify.

Appellant was found guilty of the charges. No evidence was introduced with reference to the prior convictions and the court struck the same. Proceedings were suspended and appellant was placed on probation for two years upon condition that he spend

60

days in jail and refrain from like activities in the future. Appellant was admitted to bail pending the appeal.

A substantial résumé of the pertinent facts is as follows: On January 24, 1957, Officer Deiro of the Los Angeles Police Department dialed a telephone call to the telephone numbered Capitol 5-2639 from the telephone numbered Madison 9-2098. The officer had previously received information from an informant that the Capitol 5-2639 number was being used for bookmaking purposes. The informant had given the officer information in the past which had resulted in arrests of suspects being held to answer in court. The officer ascertained from the telephone company that the telephone with the number Capitol 5-2639 was located at 3608 Griffin Avenue, Los Angeles.

The person answering the officer’s call had a male voice. Deiro stated over the telephone, “This is Eddy for Vac, Madison 9-2098.’’ The male voice repeated the telephone

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number. Deiro inquired, “Do you have the results of the Fifth?” The male voice stated, “No, I don’t have the results. I will have them call you.” The officer then hung up. Until the telephone talk the officer had never heard the answering male voice, but he did hear the appellant’s voice after the arrest and recognized appellant’s voice as being the voice he had heard in the telephone conversation. About three minutes after the officer hung up, the telephone numbered Madison 9-2098 rang and Deiro answered. An unknown male voice said, “Hello,” and Deiro said, “This is Eddy for Vac.” The male voice said, “Is this Vac?” and the officer replied, “No, this is Eddy; I am calling for Vac.” The male voice then said, “Did he give you the number?” and the officer replied, “Yes.” The male voice then stated, “O.K., what do you have?” Officer Deiro replied, “In the 6th Nearly, 2 to win.” The male voice said, “That is scratched.” The officer then stated, “OK, then in the 7th give me Spike; in the 8th Wire-line ; make that a $2 win parley. ’ ’ The voice repeated' the officer’s statement and then said, “Thank you,” and hung up. The officer had learned that there was a horse named “Nearly” which was to have run in the sixth race at Santa Anita but was scratched, a horse named “Spike” running in the seventh race, and a horse named “Wireline” running in the eighth race.