People v. Newman

FORD, J. An information was filed in which the appellant Elijah Newman and a person named Plelen Hendrix were jointly accused of certain offenses. In the first count, a violation of section 337a, subdivision 1, of the Penal Code was alleged. In the second and third counts, respectively, violations of subdivisions 2 and 3 of that section were charged.1 In [421]addition, in a fourth count Helen Hendrix alone was accused of a violation of subdivision 5 of section 337a of the Penal Code. At the trial, the appellant and his codefendant each waived the right to trial by jury. It was stipulated that the cause should be submitted on the testimony contained in the transcript of the proceedings had at the preliminary hearing, but with each party having the right to offer additional evidence. The appellant was convicted of the offenses alleged in the first three counts of the information. His codefendant was acquitted of the offenses charged against her.

The present appeal is from the judgment. The appellant states that the sole question raised by him is as follows: “Where two parties are jointly charged and, upon identical evidence, one is convicted and the other acquitted, should the conviction be reversed as being inconsistent and repugnant to the finding of not guilty?” So that the merits of his position may be properly evaluated, the evidence will be summarized.

Charles J. Putnam, a police officer for the city of Los Angeles, testified for the People. It was stipulated that he was an expert “in the ways and means in which bookmaking is commonly conducted in the County of Los Angeles. ’ ’ He saw the defendants on February 3, 1960, at 917 West 51st Street. A single-family residence was located there. The witness entered the residence with a person known to him as Walt. After the officer indicated that he wished to make a bet, the appellant handed him a copy of the National Daily Reporter, “a scratch sheet” which showed “the tracks throughout the country and the horses running at the post positions.” The witness and Walt sat down on a divan and discussed “the horses we were going to bet.” The officer then asked how he would find out whether he won, whereupon Helen Hendrix said that he could listen to the radio and then come back and pick up his winnings if he did win. He asked her if she had any “indications” as to which horse he should bet; she said that she did not and that she had lost money several days before and did not feel qualified. The officer indicated that he wished to place a bet, whereupon the appellant “accepted a $2 wager on King’s Record at the second race in Santa Anita on that day.” The officer gave the appellant two one-dollar bills and the appellant made a notation of the bet on a white-