People v. Miller

FOX, J. pro tem.

Defendants appeal from a judgment of conviction for violating subdivision 2, section 337a, of the Penal Code, and from the order denying their motion for a new trial. Said subdivision makes it a crime for any person to keep or occupy a room or enclosure of any kind with books, papers or paraphernalia for the purpose of recording bets upon the results of .horse races. A jury was waived, and by stipulation the cause was submitted to the trial judge upon the transcript of the testimony adduced at the preliminary examination and the exhibits introduced thereat.

The defendants are charged with having committed the offense in a garage located at 545 South Maple Avenue, in the city of Los Angeles, on September 29, 1943. Officer Boswell and a fellow officer had the premises and the defendants under observation for approximately two hours prior to the arrest of the defendants about 2:30 in the afternoon of said date. From time to time they saw defendants Smith and Miller walk out of the entrance of the garage and walk up and down the street. On one occasion Officer Boswell saw a man across the street from a union building that is almost directly opposite the garage, and approach defendant Miller. After a short conversation the man handed defendant Miller some money. On two other occasions when men came from

[384]

the union building the officers followed them to the door of the garage and “by peeking around this door” Officer Boswell observed two of these men hand defendant Smith some money. When the officers entered the garage they found three or four men sitting and standing around, looking at scratch sheets. When they walked in defendant Smith winked at these men and nodded. One of the men threw a scratch sheet under the sofa upon which he was sitting. The other men got up, laid their scratch sheets on the table and walked out. In three or four minutes a man by the name of Robins entered the' place and asked defendant Miller, who was seated at a desk, “What was the name of that horse that paid $3.20 to win!” No reply appears to have been made to Robins. He then went over to the desk and started looking through a scratch sheet which was lying there. He said, “I think I’ll bet on this horse. ’ ’ He pulled a wallet out of his hip pocket, turned around and looked in the direction of the open door. Defendant Smith was standing 12 or 14 feet away—directly outside the door. Robins then “got sort of a startled look on his face and started to walk out. ...” The officers stopped him and asked him his business in there. “He said he came in to try on a coat that he was making for Smith. ’ ’ He did not, however, explain why he did not have the coat with him. Neither of the defendants made any comment about the Robins incident or the statements which he made. There was an adding machine on a desk in the corner from which the officer took about two feet of tape which was introduced in evidence. He also recovered three scratch sheets at that time. The defendants were then arrested. There was also introduced in evidence an adding machine tape about three feet long, and a paper captioned Metropolitan Scratch Sheet, under date of September 27, 1943. These had been taken from this place the day before, at which time the officer saw and talked to defendant Smith. Before leaving the place the telephone rang and the officer answered the call. The party wanted to place a bet. The telephone rang several times after that but the officer was unable to get any more conversations.