Reynolds v. Roll

The complaint herein alleged that on February 3, 1949, and thereafter the plaintiff was the owner and entitled to the possession of $24,990.91; on said

The answer alleged that on said date, about 12:30 a. m., Mr. Simpson as district attorney caused the plaintiff to be arrested by representatives of his office and by deputy sheriffs at 5143 Whittier Boulevard, Los Angeles, upon charges of violation of, and conspiracy to violate, sections 319, 320, 322, 323, 326 [regarding lotteries], and 337a [bookmaking] of the Penal Code on said premises; at said time and as a part of the arrest, said officers took from said premises $24,990.91, which was used in the conduct of the overt acts constituting a violation of said sections and constituted the money offered for distribution in violation of the provisions thereof; on June 24, 1949, said plaintiff was convicted in the Superior Court of Los Angeles County of the crime of conspiracy to violate said sections of the Penal Code; said judgment has become final. As a second and affirmative defense, the answer alleged that plaintiff’s action is barred by the statute of limitations, particularly by section 340, subdivision 6, of the Code of Civil Procedure.

In a trial by jury the verdict was for defendant. Plaintiff’s motion for judgment notwithstanding the verdict was denied, and judgment was entered in accordance with the verdict. Plaintiff appeals from the judgment.

On May 19, 1949, one Kersh, the owner of the “Club Algiers” which was operated at the said address on Whittier

Appellant contends that the judgment is contrary to the law and the evidence.

■ As above stated, Kersh was the owner of the Club Algiers. Plaintiff (Reynolds) was the manager of the club and his compensation was a percentage of the profits. The club was operated in a building consisting of a large entertainment room, two storage rooms, the manager’s office, and a kitchen. In the large room there were dining tables, chairs, a bar, a dance floor, and an orchestra platform. Among its activities the club sold beer, liquor, and meals, and it maintained an orchestra of five or six members, and it conducted dancing and a radio broadcast. Plaintiff hired the employees and bought the food, beer, and other supplies. He also took care of the money received, made the bank deposits, signed all the checks, and paid some bills in cash. Bach Saturday and Sunday there were five hundred to eight hundred persons or customers at the club and on other days two hundred to three hundred were there. When drinks were ordered at the bar by a customer he would hand the money to a bartender, and when they were ordered at a table the waitress would pay for them at the bar and then collect at the table. When food was ordered from a waitress, she would pay for it before it left the kitchen and then she would collect at the table. There was no charge for dancing. There was no cover charge except on occasions when there was special entertainment.

Miss Scalph, called as a witness by plaintiff, testified that she was a waitress at the club; that in the latter part of January and the early part of February, 1949, people were sitting at the tables, and lines of people were at the tables; “there was a pyramid”—she “knew there was money going somewhere”; she participated in one of the pyramid clubs.

Mr. Morris, called as a witness by plaintiff, testified that he was a band leader at Club Algiers; on February 2, 1949, he saw people making donations at the Club Algiers; he had been instructed to keep the dance floor as clear as possible and to try to keep the people who were making donations more or less in line and clear of the dance floor; he made an announcement telling the people who were making donations to keep off the dance floor; he saw Officer Stanley (chief investigator for the district attorney) there that night; about 12:30 a. m. or 1:30 a. m. he received instructions to shut the place down; then he quit playing music and the lights were dimmed. On cross-examination he testified that he joined one of the pyramid clubs—he paid $1.00 to Mrs. Reynolds and she wrote his name on one of the charts; a chart was a large sheet of paper with a group of names in blocks, in the shape of a pyramid, on the sheet; he did not know how many parts of the pyramid club might be termed one club—there might be ten pieces of paper to make one club or there might be one hundred; he collected a prize of $512; it was his custom to play a fanfare when a prize was awarded to a winner; he played three or four fanfares on such occasions in January and February, 1949; on the same day that he won a prize the hat check girl (Miss Grady) also won a prize of $512—he had joined the part of the club which she had joined; six tables were located along the wall in the rear of the main room where money was received from people who wanted to join the pyramid club; plaintiff’s office is about 30 feet from the nearest table—a door to the main room is about 20 feet from the tables, and the office is down a hallway about 10 feet from that door; on said day, in that office, plaintiff introduced him to “Mr. and Mrs. Lakhugus,” the

Mr. Roll, the district attorney, who was called as a witness by plaintiff under section 2055 of the Code of Civil Procedure, testified that on February 2, 1949, he was chief deputy district attorney; about noon of said day two men, who said they had been working at the Club Algiers, came to the district attorney's office and made oral complaints of the activities of the Club Algiers; he went to the club about 10 p. m. of said day and at that time there were two hundred or three hundred persons there; there was a large placard on the wall which had on it something about a pyramid club and donating or a dollar contribution; Officer Stanley, the chief investigator of the Bureau of Investigation, and other members of that bureau, and men from the sheriff’s office, were there; he saw people giving dollars to people where tables■ were set up; he saw some of that money being put" into large envelopes; he saw a large sum of money brought out from the rear on a tray; they announced that it was $2,500 and that someone had won it; after the members of the sheriff’s office and members of the Bureau of Investigation had gone into the office, which was in the rear, and had made the arrest, he (Mr. Roll) went into the office; there was no search warrant, writ of attachment, or writ of execution, or any written process in the possession of any of the officers ; the arrest was made upon the basis of violation of certain sections of the Penal Code which occurred in the presence of the officers; he saw money in several places—in a desk drawer that was filled with silver half dollars and dollars; “there was money all over inside and outside the desk”; he saw numerous envelopes with money in them; the envelopes were the same type they were using “on the outside on these one dollar Pyramid Club transactions”; names were on the envelopes; in a storage room he saw a box in which there was at least one hundred dollars in dollar bills; plaintiff and a representative of plaintiff were there when the money was counted; the money came from various places; he gave no receipt for the money; the money was not taken for a tax or assessment. On redirect examination he testified that toward the back of the large room there were some persons behind tables; people would go to them, give their names and a dollar bill to them, and the persons behind the tables would

Officer Stanley, called as a witness by plaintiff under section 2055 of the ■ Code of Civil Procedure, testified that he was the chief of the Bureau of Investigation of the district attorney’s office; on said February 2d about 8:30 p. m. he went to the Club Algiers and at that time about one hundred persons were there; about six tables were upon the dance floor; he saw persons taking what they called donations; during the 15 or 20 minutes he was there (the first time) he saw fifty or sixty persons making one dollar donations; he did not hear any conversation between the persons who made the donations and the persons to whom the money was given; he returned to the club about 11:30 p. m. and at that time about four hundred persons were there; he arrested plaintiff at 12:30 a.m.; plaintiff said that he was in charge of the place; eight men from the Bureau of Investigation were there; he (officer) took about $6,900 out of the safe, $260 from a box in a storeroom, over $17,000 in unopened envelopes in the office—some of the envelopes were in a carton under the desk in the office and others were in and on the desk and all over the office; he also took a box of silver coins from a desk drawer; he told plaintiff that if the safe was not opened he would have it hauled away; the officer’s secretary and an investigator, in the presence of the plaintiff, counted the money which was taken from the safe; the envelopes were not opened at that time; that money, except the box of coins, was taken to the district attorney’s office; the box of coins was left at the club; the money was counted at the district attorney’s office in the presence of plaintiff and several other men; he believed that the total amount was

Officer Stanley, when called as a witness by defendant, testified that he saw girls at tables taking money from persons who went to the tables; that the girls put the money, in envelopes ; the envelopes were delivered to plaintiff’s office; he (officer) assigned an investigator, Nick Cimino, to the Club Algiers ease; when he (Officer Stanley) was at the club on the night of February 2d about 12:30, the band leader announced that a payment of $2,500 would be made; then Cimino and a girl went up to the platform; a tray full of currency was presented to them; then Cimino, accompanied by the girl and two bodyguards, carried the tray of money to the club office; within about two minutes thereafter Officer Stanley went into the office and found that Cimino had plaintiff in a corner; then Officer Stanley took a gun away from plaintiff and put handcuffs on him; there was a little over $1,000 on the tray; he asked plaintiff why he had so much money lying around in the office; he replied that he had started this pyramid club as a rib and that it got so big it got away from him and the money came in so fast he could not handle it; he said that he had not had time to open the envelopes; he (officer) did not take any money from the cash register behind the bar; all the money he took came from the club office except $160 ($260) that was in a storeroom adjoining the office.

Mr. Yessian, called as a witness by defendant, testified that he had been employed at the club about 10 days before the arrest; he collected money from the six or seven tables where girls were writing names and taking money for the pyramid club; before the girls put the money in an envelope, he would cheek the amount of money with the lists; then they would put the money in the envelope, write the amount and their names thereon, and give the envelope to him; after a few envelopes accumulated he took them to plaintiff’s office and gave them to plaintiff; there were lines at the tables, in the evenings, which at times would extend outside and around the corner; $3,000 was taken into the office during the last day he was there; on the morning of February 2d he

Nick Cimino, called as a witness by defendant, testified that he was an investigator for the district attorney; pursuant to an assignment by Officer Stanley, he went to the Club Algiers on the evening of said February 2d, he was introduced to plaintiff by Yessian as Nick Cimino, his brother-in-law, who was ready to accept the phony pay-off; plaintiff asked if Cimino knew what was going to happen; Cimino told plaintiff that he did not have to worry; plaintiff said that Cimino and his wife would receive a $2,048 pay-off with the understanding that the money was to be returned to him; he also said that he would fix Cimino up for his trouble. He testified further that on said February 2d, six tables were in the rear of the main or large room, and ladies were sitting behind the tables; on the tables there were sheets of paper

Officer Graham, a deputy sheriff, called as a witness by defendant, testified that on January 31, 1949, about 5 p. m. when he went to the club, there were four lines at tables where donations and names were taken; he had to stand in line about 30 minutes before he got to a table; he gave $1.00 to a girl at a table and she placed his name, address, and telephone number in a square on a paper; she stated that it would take about two weeks for his name to reach the top of the pyramid and that he would be notified when his name approached the top; she placed the money in a box; he saw other persons contributing a dollar; later there were six tables in operation; he saw a person take the collections and sheets of paper to the office of plaintiff; he was present on the night of February 2d when plaintiff was arrested; after

This action was commenced on January 31, 1952—about three years after the money was taken.

Appellant argues that since it is undisputed that he was in possession of the money and since possession creates a presumption of ownership, he was entitled to rest his case upon that presumption. He argues further that such presumption was not overcome by evidence to the contrary; that the evidence introduced by defendant relating to the manner in which plaintiff acquired possession did not constitute a defense; that appellant established his right to possession (except as to $2,500 given as a prize) without relying upon any illegal transaction; that defendant took the money without any right thereto and without any warrant or other legal process therefor; that the money was not used as evidence in a criminal trial; that since no action to forfeit the money was commenced and since such an action was barred by the statute of limitations, defendant was not entitled to judgment upon the basis of a forfeiture. Appellant therefore asserts that he is entitled to possession of the money, except as to $2,500 (given as a prize) and the $6,900 (taken from the safe—for which Kersh obtained judgment).

There was no action by defendant to declare a forfeiture, and it is conceded that a forfeiture is not involved herein.

Appellant did not testify. He rested his case upon a presumption of ownership of the money. The jury could have found that the presumption of ownership on the part of appellant was overcome by the evidence that Kersh was the owner of the Club Algiers and that appellant was the manager whose compensation was based upon a percentage of profits; and that plaintiff said, at the time of the arrest, that the money did not belong to him. If the jury so found (that appellant was not owner of the money), then the presumption of ownership was dispelled and the only remaining basis for appellant’s claim to a right of possession was that he as manager or agent for Kersh (the owner) had the right to possession. In view of the issues presented, there is an implied finding in the verdict of the jury that the claim of appellant for the return of the money was based upon an illegal

In. the present case the evidence was sufficient to support a finding that plaintiff’s claim for a return of the money was based upon an illegal transaction. It is conceded that $2,500, the sum which allegedly was on the tray and purportedly was awarded as a prize, is not recoverable by plaintiff.- Approximately $17,000 of the money which plaintiff is claiming was in envelopes upon which names and amounts were written. The evidence shows that the persons who were at the tables, receiving the $1.00 and $2.00 donations from persons who were in the lines at the tables, placed the money in envelopes and wrote names and amounts thereon. Those envelopes, which were of the same appearance as the envelopes containing the money involved here, were taken to plaintiff’s office. Envelopes containing, the $17,000 (approximately) involved here were found, by the officers at the time

Appellant asserts further that the court erred in giving and refusing other instructions. He refers generally to various instructions. It is not necessary to set forth those instructions and discuss them in detail. Considering all the instructions together, it appears that the jury was instructed adequately.

The judgment is affirmed.

Shinn, P. J., and Vallée, J., concurred.

Appellant’s petition for a hearing by the Supreme Court was denied March 25, 1954. Carter, J., Traynor, J., and Schauer, J., were of the opinion that the petition should be granted.