People v. Pierce

GRIFFIN, P. J. Defendant-appellant Jack Pierce was in-dieted in count one with defendant James Springer on a charge of conspiracy to commit the crime of bookmaking (Pen. Code, §182, subd. 1; and Pen. Code, § 337a.) Three overt acts are charged: one, that about June 22, 1957, one Schrader met with defendant Springer at Tony’s Newport Café and Bar at 5034 Newport Boulevard in Ocean Beach; second, that on or about June 22, 1957, Schrader placed a horse race bet with Springer and he accepted it in the.presence of appellant Pierce; and third, that about June 26, 1957, Schrader placed a race horse bet with defendant Springer who then and there accepted it. The fifth count charges appellant Pierce with the crime of permitting the use of premises for bookmaking (Pen. Code, § 337a, subd. 5), i.e., that about June 22,1957, while the owner or occupant of a building, to wit, Tony’s Newport Café and Bar, he permitted same to be used and occupied for the purpose of bookmaking. Both defendants were found guilty of these charges by a jury. Appellant was granted conditional probation. He appealed from the judgment of conviction and order denying a new trial. The first claim is that the verdict was against law and evidence mainly because the verdict was based upon incompetent and irrelevant evidence.

Appellant operated, as the owner, Tony’s Newport Café and Bar, at the address alleged. An investigator by the name of Schrader was employed in making investigations in reference to bookmaking activities in the county. He testified generally [462]that in June, 1957, he met one Jackson in a bar in San Diego and went to appellant’s place of business; that there Jackson introduced him to appellant; that in the course of the conversation appellant informed him that “Herb, the bookie” (defendant Springer) was one of the best around and that Herb would take a bet from just about anyone, probably even from the law; that generally they became interested in horse racing talk and appellant offered to take him to the Tijuana race track; that he said he knew his way around there and knew the right people; that appellant told him about Herb, “the bookie out there”; that several people came in while he was in the restaurant and talked to appellant; that he left appellant’s place of business and returned on June 21st alone; that some conversation ensued about him wanting to place a couple of bets; that appellant told him Herb, the bookie, was around and shortly thereafter appellant left the bar and returned with Herb and introduced him to Schrader; that Schrader told Herb, in appellant’s presence, that he wanted to make a couple of “investments”; that he (Schrader) made two $5.00 bets on horses running at Hollywood Park, which Herb accepted; that he handed Herb a twenty-dollar bill and said “$5.00 to win on Larks Music running in the fourth race at Hollywood and $5.00 to win on The Pie King running in the seventh race . . . ”; that he took the names of the horses from the entries in the National Daily Reporter of that date which he subsequently marked showing the horses and the amounts bet with the notation “Herb” (Exhibit No. 1, received in evidence over appellant’s objection) ; that Herb handed him back $10 and said if he was not around to collect his winnings, if any, he would leave them there with appellant ; that Herb told him that he would always be around there or in the card room near-by if he cared to locate him again; that on June 26th, he saw defendant Springer in a card room a few doors from Pierce’s bar, sitting at a card table; that in the presence of Jackson he handed him $5.00 to win on Jaylpee, Jr., eighth race, at Monmouth, and showed him the entry on the scratch sheet he had so marked with the notation “Herb”; and that Herb said “Okay.” This scratch sheet (Exhibit No. 2), thus marked and initialed by him was also received in evidence over objections. These horses did not win.