People v. Labarbera

WARD, J. J. — Defendant was accused of keeping and occupying certain premises containing books, papers and paraphernalia for the purpose of recording and registering bets and wagers upon the purported trial and contest of skill and speed of beasts, to wit, horses. (Pen. Code, § 337a, subd. 2.) A second count charged the recording and registering of bets upon the result and purported result of a trial and contest of speed and power of endurance between beasts, to wit, horses. (Pen. Code, § 337a, subd. 4.) The record discloses that at the time of arraignment the trial court “made an order granting the Defendant’s Motion to set aside the Information as to count two (subdivision 4), and denied as to count one (subdivision 2).”

[641]The evidence shows that police officers broke into the establishment referred to in count one, which had been rented by defendant. Shortly thereafter defendant entered the premises. After the entry of the police the telephone bell rang several times. The calls were answered by one of the police officers who testified that the telephoning parties desired to bet various amounts on horses, designating them by name or number. The police officers found in the room occupied by defendant certain printed sports reviews and daily bulletins appertaining to horse racing and certain pages containing other matter.

One of the officers who testified qualified as an expert on the contents of certain exhibits found in the establishment and the lettering symbols and marks thereon as records and paraphernalia used in recording and registering bets and wagers on horses running that day on eastern and California race tracks. The above evidence is sufficient to sustain a conviction of keeping and occupying premises with the purpose of recording and registering bets and wagers upon a contest between beasts. (Pen. Code, § 337a, subd. 2.) The cause of action alleging a recording or registering of a bet or wager upon the actual or purported result of a contest of speed between horses had been dismissed.

The district attorney, in support of subdivision 2 as charged in the information, introduced a record of pages obtained from a second person, in another establishment, which in many instances showed similar bets made on the same day on the same horse in the same race for the same amount by parties with identical names, initials or designations. The records found in defendant’s establishment were directly connected with the accusation designated in the information. That identical or similar records were found in another establishment, if properly identified, was a circumstance that might be weighed by the jury as tending to prove that data had been received by the defendant at his place of business for the purpose of recording and registering bets on horse races. This evidence did not prove a second offense as a means of showing a common plan, design or intent to commit the charged offense, but merely that from the additional sheets an inference might be drawn that the two establishments had been in communication. Whether either establishment was conducted upon the “lay off” plan (see People v. Oreck, 74 Cal.App.2d 215 [168