People v. Cohen

DORAN, J. Appellant was found guilty and convicted of the crime of violation of section 337a, subdivision 2, of the Penal Code, a felony, upon an information charging him with having kept and occupied a drug store and building in the city of Los Angeles with books, papers, apparatus, devices and paraphernalia for the purpose of recording and registering bets on horse races, and for the purpose of selling pools and purported pools upon the results of such races. The case was tried before the court sitting without a jury, a trial by jury having been expressly waived.

At the trial the following was presented as evidence. On February 1, 1941, an officer of the Los Angeles Police Department, vice detail, accompanied by other police officers, went into a drug store located at 758 South Rampart in Los Angeles. In the prescription room he observed a stairway leading to a room upstairs and attempted to gain entrance thereto, but found the door padlocked. The druggist in the store did not comply with a request to open this door. The officer walked into the kitchen, in back of the drug store lunch counter, observed a trap door in the ceiling, climbed up and raised the unhinged trap door and saw the appellant throwing objects through a small opening into another room. As [461]the officer pulled himself through the trap door, the appellant ran back into the main portion of the attic room, which was built in an L shape. The officer followed the appellant and there found a table with phone wires leading over to the. table. The wires had been snipped. The-officer then crawled through the opening leading into the other small attic room and recovered the objects he had seen thrown in there by appellant. These objects included a bunch of papers identified by the officer as betting markers, and another bundle containing racing publications or scratch sheets, including one which the officer stated was privately circulated and commonly used by persons keeping a book on horse racing in the locality. These objects were found by the officer in a paper carton lying on the floor of the small attic room. The scratch sheets were marked with red crayon in a manner which the officer stated had particular significance to persons keeping-a book on horse races. One of the sheets in question was dated February 1, 1941, the date of appellant’s arrest. The officer also found a basket containing what in his opinion were old betting markers. The officer also found three disconnected phones in the small attic room. Two of the phones thus found had attached to them a plug similar to a light plug. One of these phones the officers connected up by plugging it in to a wire in the large attic room, and through that phone so connected the officers received incoming phone calls. When the phone rang upstairs in the attic or balcony the phone in the prescription room also rang. One of the officers answered the phone several times and wrote down the conversations, as follows. The phone rang and a voice stated: “This is Yerma; I want to talk to Mickey,” and then it said “489, 3 to win; 582, 3 to win; 267, 1 to win, insured; 266, parleyed; 268, 2 to win; 304, 2 to win; 306, 2 to win” and “Who won the first race?” The phone rang again and a voice said: “Hello, Mickey, this is Jeff. Have the cops pinched you?” Again the phone rang, and the party on the other end of the line said: “Is this Mickey? This is Yerma again. 481, 2 to win, insured, and 1 to place on the same horse.” The phone rang many other times but the officer did not write down the conversations. The officer who took these calls, who, it was stipulated, was familiar with bookmaking paraphernalia, testified in relation to the-messages thus received that the number preceding the