People v. Ungaro

WOOD (Parker), J. Defendants were charged with violating subdivision 1 of section 337a of the Penal Code (bookmaking) and subdivision 3 of said section (receiving money as a wager on a horse race). In Count I it was charged that Tony F. Ungaro violated subdivision 1 on December 10, 1952. • In Count II it was charged that he violated subdivision 3 on said date. In Count III it was charged that Tony and Michael M. Ungaro violated subdivision 1 on December 12th. In Count IV it was charged that they violated subdivision 3 on December 12. In Count V it was charged that they violated subdivision 1 on December 13. In Count VI it was charged that Michel violated subdivision 3 on December 13th. In a trial by jury defendants were found guilty as charged. Their applications for probation were denied. Judgment, upon each count, was that each defendant be imprisoned in the county jail for 90 days, said terms to run concurrently. The notice of appeal recites that each defendant appeals from the judgment, verdict, sentence, and order denying his motion for a new trial. Since an appeal from a verdict or sentence is not authorized, the purported appeals therefrom will be dismissed. (People v. D’Elia, 73 Cal.App.2d 764, 766 [167 P.2d 253].)

Appellants contend that the defense of entrapment was established by the evidence. They argue that the evidence shows that the acts of bookmaking originated as an idea of the police officers, and that the idea was generated by them in the minds of defendants. “ It is true that when the criminal intent originates in the mind of the entrapping person, and the accused is lured into the commission of the offense in order to prosecute him, such entrapment will constitute a defense.” (Peoples. Cherry, 39 Cal.App.2d 149, 151 [102 P.2d 546].)

A police officer testified that on December 9th, about 12:30 p. m., he went into the bar of a café in San Pedro; he saw Michel, who was at the bar, accept $3.00 or $4.00 from one man and a piece of white paper from another man; Michel put the money and the paper with a roll of bills and then placed the bills in his pocket; the next day, December 10th, the officer went to the cafe about 12:30 p.m.; Willie, the bartender, introduced Tony to the officer; the officer showed a piece of paper with “a selection” written on it to Tony, who [59]said that he Avould “take the bet on the sixth and seventh races” but not on the fourth race; he told the officer to get rid of the paper because they could all be pinched for having it in their possession; the officer gave Tony $5.00, and Tony gave him $1.00; about 30 persons were in the bar, and they had racing forms in their possession; the next day, December 12th, about 12:30 p. m., the officer went to the café; he told Tony that his horse had won, and Tony paid him $4.00; the officer then told Tony that he wanted to bet “Two to win” on a horse by the name of “Mithra,” which was running in the fourth race, and he gave Tony $2.00; Tony made a telephone call and then told the officer that if he (Tony) was not there for the pay off, his brother, Michel would be there, and that the officer had been given the code name “Willie X.,” because he was a friend of Willie, the bartender; about 2:45 p. m. on that day Michel told him that Tony had said that he (officer) was one of their customers, and Michel also said, “I’ll take your money”; the officer told Michel that he wanted to bet $2.00 on a horse by the name of “First Pass” in the sixth race, and he gave Michel $2.00; about 3:45 p. m. on that day the officer told Michel that he wanted to bet on a horse by the name of “White Fleet” in the eighth race; the officer then gave him money for the bet; thereafter he saw another man pass some money to Michel; Michel then wrote something with a pencil on the palm of his left hand, and went to the telephone booth; while he (officer) was in the café on that day he saw Michel and Tony take money from approximately fifteen men (neither defendant was an owner or employee of the café); On December 13th, the officer went to the café, and about 1:25 p. m. he saw Michel in the telephone booth; Tony asked the officer if he wanted to make a bet, and he replied that he wanted to bet $2.00 on “Beamer’s Champ”; thereupon Tony opened the telephone booth and said to Michel, ‘ ‘ Two dollars on Beamer’s Champ for Willie X. ”; Tony then told the officer to give $2.00 to Michel; later fhe officer paid $2.00 to Michel while they were in the rest room; Michel said, “Before I take your money let me wash this chalk off my hand”; then Michel washed his hands; thereafter Michel told him that Beamer’s Champ had won; the officer then said he wanted to bet on “Respondent and Clara D.”; Michel paid him the difference between the amount of that bet and the amount he had won; later the officer told Michel that he Avanted to bet $2.00 on a horse by the name of “Lovely Sight, ’ ’ and he paid $2.00 to Michel.