People v. Cohen

Evidence Sufficient

About 7 o’clock on the morning of October 12, 1950, Police Officers Duncan and Brooks stationed themselves in a position to observe the premises numbered 1003 on a popular boulevard of Los Angeles. Half an hour later defendant Rose unlocked the front door of those premises, entered and sat at a desk for 10 minutes. On emerging from 1003 he

The top sheet in exhibit 3a was a recapitulation written on adding-machine tape whose figures corresponded with those on one card written with pencil by appellant. Also included in the same packet were many yellow sheets. Each was a professional type betting marker. Bach bore the name of a better and the initial of the agent; each contained the number of the horse; the sum wagered to win or to place, the amount won and the loss to be collected from or to be paid to the agent whose initial is on the marker.

Another envelope taken from the desk contained many professional type markers dated “10-10” and a top sheet. Below the double line of the top sheet were memoranda in the handwriting of appellant. Another envelope contained betting markers dated October 9 showing the wagers, betters and agent and a top sheet with a list of bets, betters, losses and winnings of each and the initial of the agent. The writing on the latter sheet below the top double line was that of appellant. A spot comparison of the documents in exhibits 3a and 3b with the California Digest disclosed that the horses whose numbers were on the betting markers ran on October 10 and 11, 1950. And the sport section of a metropolitan daily published in Los Angeles established that the horses identified by the California Digest had paid through the parimutuel machines at the tracks indicated by the digest the identical winnings shown on the markers of those dates.

The yellow sheet with pencil markings was taken by Officer

Tape number 2 in exhibit 7 contains printed figures with names written to the left of them. Each name or initial on tape number 2 and its figures are found on exhibit 6. The yellow sheet No. 1 in exhibit 7 has names with figures opposite. Some of the same names are found in exhibit 6 but the figures opposite them are different. Yellow sheet No. 2 in exhibit 7 was patterned after yellow sheet No. 1 although its names and figures were different from those in sheet No. 1. The testimony of the witness Sloan established that the pencil writing on the two yellow sheets is that of appellant.

Also in exhibit 7 is a large white sheet bearing a list of names with figures opposite them including the name “King.” By a comparison of these names and figures it is found that they appear in the same relation to each other on exhibit 6 and the writing on the white sheet is that of appellant.

It is thus established that appellant was engaged in bookmaking, denounced by section 337a, Penal Code. If he was not a bookmaker, why was the list of betters and winners written by his hand in the books taken from the possession of bookmakers ? If he was not a bookmaker, why was he searching for someone before 10 o’clock in the morning at 1003, a rendezvous for bookmakers ? Inside those premises two bookmakers were arrested. In their possession were betting markers and owe sheets and the writing of appellant. If he had been innocently requested by another person in Nevada to deliver the lists to 1003 as he testified, he would have stopped in front of that location and delivered the package

His possession of $4,900 at the time of his arrest is a potent link in the chain of circumstances to prove his vocation. A person of ordinarily, honest habits in importing so large a sum from Nevada to California would have made use of bank exchange. While the denials and explanations given by appellant from the witness stand might have warranted acquittal of the charge, the trial judge did not choose to believe him but proceeded to rely upon the inferences reasonably drawn from the circumstances established and from his testimony that within the two preceding days he had by gambling in Nevada increased $500 to about $4,000; his method of transporting such moneys to California; that he had written in Las Vegas the list of figures on exhibits 7, 3a, 3b and 3c at the dictation of his friend Fisher with whom he traveled to Los Angeles; his manner of approaching 1003; the possession by his codefendants of betting markers written by his hand; facts that the groups of papers, the betting markers and owe sheet taken from appellant corresponded with the names, initials and figures on the owe sheets and markers taken from the desk at 1003, and from the possession of the other defendants and that the owe sheets taken from Eose and the tapes taken from appellant both had the handwriting of appellant. These facts together with the conduct of appellant on the witness stand warrant the inference that on October 12, 1950, a book of bets was made or being made and that appellant was a participant in the inglorious enterprise.

The handwriting on the owe sheets attached to exhibits 3a, 3b, 3c, 7 and 10 is all or in part that of appellant. At the time of his arrest he had a tape with figures stamped on it. They are the same figures as those preceded by C or P on the markers taken from Eose. Some of these papers were written by appellant. The names Cecil and King and the letter K were found on some of the papers in appellant’s possession.

The judgment of the trial court will not be reversed by a contrast of the evidence for and against a conviction. That court is still the forum in which the facts of an issue are tried and so long as some substantial evidence to support the implied finding exists, there can be no reversal. Before a judgment of the trial court can be set aside on appeal “it must be made clearly to appear that upon no hypothesis whatever is there sufficient substantial evidence to

The trial court had the power and authority to determine that the narrative of appellant was fabricated and that the facts proved by the state warrant the finding of appellant’s guilt. (People v. Froehlich, 65 Cal.App. 502 , 506 [ 224 P. 471 ]; People v. Ross, 100 Cal.App.2d 116 , 123 [ 223 P.2d 85 ].)

Denying a Severance

There was no error in denying appellant’s motion for a separate trial. He contends that because his codefendants were accused of violating subdivision 2 of section 337a he would be handicapped by the necessity of being present during the entire trial. A person jointly accused with the others does not have a right to a separate trial. He has merely the right to ask for it. The court is vested with discretion to grant or deny the request. (People v. Burton, 91 Cal.App.2d 695 , 714 [ 205 P.2d 1065 ].) A severance may be properly denied where there is a common element of substantial importance in the commission of the crimes. It will not be granted because damaging testimony or confession of a co-defendant might be admitted. Moreover, had appellant been granted a separate trial, almost all of the evidence of the activities of the codefendants at premises 1003 would have been admissible since the documents in his handwriting were found there showing the same figures as those on the documents found on his person.

Telephone Conversation Harmless

Officer Duncan testified to having answered the telephone at 1003 when the voice asked: “What in the hell is going on in there? Officer, “Nothing. Do you have anything for me?” Voice, “No.” After a motion by a codefendant to strike the conversation, appellant asked that it be allowed to remain in the record. Therefore, the testimony having been invited by appellant the denial of the motion will not be disturbed on appeal. (People v. Redman, 39 Cal.App. 566 , 569 [ 179 P. 725 ].)

There was no error in overruling a general objection to the testimony of the officer that he found on appellant at the time of arrest $4,900. The expert proof showed that the taking of wagers on horse races and the making of books involves the collection of moneys and that at the end of a day’s work the moneys and the owe sheets are taken to “a drop spot” where an accounting is made and winnings are paid. No person astute enough to attempt to engage in a criminal enterprise would deposit his money in a bank and disburse it to the successful betters by check. Holding such funds in the form of legal tender expedites the consummation of the business at hand and renders difficult detection by the authorities. After proof of appellant’s participation in the bookmaking and his presence near the scene of the activities of bookmakers it was not error to admit evidence of his possession of $4,900. It was a fair inference that the money he had was that which he and his agents had collected from betters or which he had assembled to pay them. (People v. Carroll, 79 Cal.App.2d 146 , 148 [ 179 P.2d 75 ].)

Evidence of Conversations With Appellant

Appellant contends that the corpus delicti was not established and therefore evidence of his extrajudicial statements was improperly admitted. But such betting markers and owe sheets were found at 1003 as are commonly used by bookmakers, dated the 9th, 10th and 11th of October; they tended to prove that wagers had been laid on horse races and recorded on the markers by agents “Cecil” and “K” and that recapitulations of the amounts on the markers were shown on the “owe sheets” and some of the entries had been made by appellant; that other papers showed names and figures written on cards similar to the owe sheets found at 1003. Such evidence established the corpus delicti. From the presence of scratch sheets, owe sheets and betting markers at any place, it is a fair inference that bookmaking has been carried on there. While there was no evidence that scratch sheets were found at 1003, it was proved that certain numbers on the markers represented specific horses running in the races as designated in California Digest and that such publication is distributed only to bookmakers and others interested. There was no error in admitting the conversations with appellant.

Documents not written by appellant but found in the premises 1003 with papers in appellant’s handwriting tend to prove that bookmaking was being carried on. Prom such proof the facts at issue herein were logically inferable. (Code Civ. Proc., § 1870, subd. 15.) The presence of any bookmaking paraphernalia or owe sheets or betting markers at 1003 tended to prove the crime. (People v. Sam Lung, 70 Cal. 515 , 517 [ 11 P. 673 ]; People v. Hatfield, 77 Cal.App. 212 , 217 [ 246 P. 95 ]; People v. Grayson, 83 Cal.App.2d 516 , 520 [ 189 P.2d 285 ].) Especially is this true where there is evidence of the accused’s connection with it. (People v. Partee, 70 Cal.App.2d 736 , 739 [ 161 P.2d 586 ].)

Appellant deems himself to be aggrieved by the court’s refusal to exclude exhibits 1, 2, 3, 4, 6, 7, 8, 11, 12, 13 and 14. His assignment of error with respect to those documents is without merit. Exhibits 1 and 2 taken from 1003 consisted of betting markers and owe sheets dated October 11 bearing the name Cecil, the letters C and P. At the time of appellant’s arrest he carried on his person a paper tape dated October 11 bearing the name “Cecil” and the same figures found on exhibits 1 and 2. Also the figures preceded by “ C ” on his papers had been added with the same sum as shown on exhibits 1 and 2 and those sums had been subtracted from the total of the “C” numbers leaving the same result “P-11270” on exhibit 7. From the fact that appellant carried in his pocket duplicates of betting markers and owe sheets taken from the codefendants it was a fair inference that appellant was connected with the parties who carried exhibits 1 and 2. Therefore, the admission of exhibits 1 and 2 was a correct ruling. (People v. Steccone, 36 Cal.2d 234 , 239 [ 223 P.2d 17 ].)

Neither was there error in admitting the other exhibits specified for similar reasons. Inasmuch as the paper containing the names of the betters and the amounts of their debts or net winnings on the owe sheet were stapled to the markers in each of the envelopes in exhibit 3 and were in the handwriting of appellant, it was clearly to be inferred that appellant was either the owner of the book or was in the latter’s employ, proving his guilt. (People v. Greco, 47 Cal.App.2d 628 , 633 [ 118 P.2d 886 ].) The exclusion of exhibits 3a, 3b and 3c would have been error.

There was no error in admitting exhibit 4, a check payable to “Mrs. King,” taken from defendant Frink by the officers. On each envelope in exhibit 3 was written the name

Exhibit 6 was properly admitted. It contains a list of names and figures. “Cecil” is one of the names. The betting markers each contained the name “Cecil” which indicated that the bets were made with him. Appellant’s only explanation of exhibits 6 and 7 was that they were his and the people listed “were people that he owed money and people that owed him money.” He refused to tell who they were “because he was afraid it would be held against him.” Considering his answer to the officer concerning the lists he carried and the fact that they included “Cecil, King” and “K” it is fairly .inferable that his documents were a part of the bookkeeping system of the bookmaker for whom Cecil and King worked as agents. Not only did the papers appellant carried furnish proof of bookmaking and selling, but their contents and their being on his person, in his handwriting, establish his participation in the making and the sales and were therefore properly admitted.

Exhibit 8 is a harmless, meaningless card of a real estate saleslady.

Exhibits 11, 12 and 13 are copies of California Digest. While they were not connected with appellant by Ms possession of them, they were pertinent to the issues in that the paper is bookmaking paraphernalia. It is delivered surreptitiously to bookmakers only and “people interested in bookmaking.” It is a “rundown sheet” carrying the names and “index numbers of all horses running at various tracks throughout the United States for the particular date.” The paper is used for the purpose of comparing betting markers with the information carried by the digest which shows the horses that actually ran on the date of the publication. The index numbers for horses listed in the digest were used by the agents in making up betting markers. Prom the fact that appellant wrote on the owe sheets attached to the betting markers in evidence the court inferred his participation in the making of the markers.

Exhibit 13 is a copy of the Los Angeles Times of October 12, 1950. It was used by the expert witness to com

Exhibit 14 is a leather case for carrying cards. If the handwriting on some of the cards is not that of appellant, then the exhibit was harmless.

The judgment and the order denying appellant’s motion for a new trial are affirmed.

Me Comb, J., concurred.

Appellant’s petition for a hearing by the Supreme Court was denied December 6, 1951.