People v. Rubin

HERNDON, J. pro tem.* In an information of two counts, defendant was charged with violations of subdivisions 1 and 6 of section 337a of the Penal Code, to wit, of bookmaking and accepting a bet on a horse race, respectively. The defendant entered a plea of not guilty. A jury trial was waived and it was stipulated that the cause be submitted on the transcript of the preliminary hearing. Defendant was found guilty on both counts as charged. His motion for a new trial was denied. He has appealed from the judgment and from the order denying his motion for a new trial.

Appellant urges two contentions on this appeal:- (1) that the evidence was insufficient to sustain the judgment, and (2) [562]that so far as the present case is concerned, section 337a of the Penal Code was superseded by section 19662 of the Business and Professions Code and that, as a consequence, the trial court “had no jurisdiction over the cause.” In view of the foregoing contentions it is necessary to summarize the evidence.

Officer May, attached to the Administrative Vice Division of the Los Angeles Police Department, was on duty on Friday, February 22, 1957, at approximately 4 p. m. He was in plain clothes. At about that time Officer May entered a place known as “Jack’s Bar” located at 115 West Sixth Street. As he proceeded toward the rear of the barroom the officer saw appellant talking to someone at a table. The officer observed that appellant had in his hand what appeared to be a scratch sheet. The officer entered a restroom and on emerging therefrom observed a male customer who was seated at the bar, signal to appellant. As appellant approached the customer the officer followed and took a seat immediately to the left of the customer. The officer overheard the customer say to the appellant, “Give me 2 and 2 on Master Boing in the seventh.” At this time appellant made some sort of notation on what appeared to be a scratch sheet, said, “Okay” and left the bar. This was at about 4:10 p. m. Officer May finished his drink, got up, and went to the ear in which his associates, Officers Walters and Burks, were seated. This car was parked on Main Street just around the corner from Sixth Street. Officer May informed his associates of what had transpired.

Officer Walters, a stipulated expert in the manner in which bookmaking is conducted in Los Angeles County, entered Jack’s Bar at about 4:20 p. m. He looked for appellant but appellant was not in the bar at the time. On turning to leave, Officer Walters observed appellant approaching the entrance to the bar. Officer Walters identified himself as a police officer and placed appellant under arrest for violating Penal Code, section 337a. The officer searched appellant. At the trial, in response to the question, “And did you find anything which might indicate that the defendant was bookmaking?” Officer Walters answered, “I found a National Daily Reporter’s scratch sheet on the defendant.”