People v. Owens

WOOD, P. J. In six counts of an information, the defendant was accused of violating section 337a of the Penal Code, as follows: In counts 1, 4 and 7—violating subdivision 1 on May 27, June 1, and June 2, 1960 (bookmaking on horse racing) ; in counts 2, 5, and 8—violating subdivision 3 on said dates (receiving and forwarding money bet on racing). In counts 3, 6, and 9, he was accused of grand theft. He denied allegations of the information that he had been convicted previously of two felonies (grand theft, and violating of § 337a).

Trial by jury was waived, and by stipulation the cause was submitted upon the transcript of the preliminary examination, reserving the right to offer additional evidence. Defendant was adjudged guilty of counts 1, 2, 4, 5, 7, and 8 .(the counts charging violations of § 337a), and was adjudged not guilty of the other counts (charging grand theft). The allegations of prior convictions were found to be true. He was sentenced to state prison, and it was ordered that the sentences as to the three violations of subdivision 1 (counts 1, 4, and 7) run concurrently with each other; that the sentences as to the three violations of subdivision 3 (counts 2, 5, and 8) run concurrently with each other; and that the “two” sentences run consecutively. He appeals from the judgment and the order denying his motion for a new trial.

[782]Appellant contends (1) that the evidence was insufficient to support the judgment, and (2) that the crime committed, if any, was “touting,” a misdemeanor, as defined in section 337.1 of the Penal Code, and was not bookmaking, as defined in section 337a of that code.

On February 12,1960, the defendant entered Mr. Morrison’s factory, in Temple City, and offered him a proposition “in this horse-racing deal.” Defendant said that he had 11 other customers and he usually tried to have 12, that his proposition was that Mr. Morrison would put up the money and that defendant would bet it on the races and that defendant would get one-third of the winnings. Defendant said that his name was John Owens, he had been a jockey, he had connections with all the race tracks, and he had a horse that could not lose. He asked Morrison for $500 and said that he would bet that amount on a horse. Morrison gave him a cheek for $500 on that day, but the horse did not win. About three days thereafter defendant told Morrison that he just happened to miss that time, but they always get two out of three, and the next two races ought to be good. At that time Morrison gave him $500 or $600 for the purpose of betting on the races.