People v. Cacioppo

GRIFFIN, J. Appellant was charged with the violation of section 337a, subdivision 3 of the Penal Code (bookmaking— taking and receiving a bet on a horse race). After a plea of not guilty was regularly entered the appellant was tried before a jury which returned a verdict of guilty. This appeal is prosecuted from the judgment of conviction and concerns the propriety of the rulings by the court on the evidence during the course of the trial.

On the afternoon of April 8, 1938, a police officer of the Riverside police department made an investigation with reference to a place at 3528 Ninth Street, Riverside, California. The room in question was about 50 feet long and about 15 feet wide, divided in the center with about a seven-foot partition. In the portion closest to the street was a marble machine, [110]several magazine racks and two showcases containing tobacco and candy. The officer arrived there at about 3 o ’clock P. M. He first played two games on the marble machine in the front room. Shortly after he finished the second game on the marble machine, the appellant came into the front part from the back of the establishment. The appellant came up behind one of the showcases in the room and the officer asked him which horse won the first race at Tanforan. The appellant told him the name of the horse and immediately thereafter asked the officer if he wanted to make a bet. The officer told him he did. The appellant then told him to come into the rear room. The appellant and the officer then went into the rear room, where the officer placed a $2 bet on a horse to win in the fourth race. He gave the appellant two $1 bills. The appellant put this money in his trouser pocket. Later the officer made a $1 bet on a horse in the fifth race to win. At the time the bet was placed, the appellant wrote down the number of the horse and other markings on a sheet of paper.

It appears that on these sheets there was a space for the number of the horse, the amount bet, and whether the bet was for win, place or show, and the initials or some identification of the bettor. In this ease the initials “C.E.” were put on the sheet of paper to identify the officer as placing the bet. Objection was made by the appellant to the introduction of this evidence as to the contents of the paper as he observed it. The sheets on which appellant made the above-mentioned notations were on a counter in the back room.

The officer also testified that after the race appellant called him by phone and informed him that he did not win either bet. The officer returned on both Monday and Tuesday and attempted to place another bet but on both occasions the bet was refused. On the last occasion the officer served a warrant of arrest on the appellant.