People v. Carella

The defendants Carella, Krausniek and Buxton, who are the appellants herein, by indictment were charged with felonies involving bookmaking; Count One in the indictment charged all of the defendants with a conspiracy to violate section 337a of the Penal Code, i.e., engaging in bookmaking, keeping a room for gambling paraphernalia and the making of bets, receiving and holding money

The issues on appeal concern primarily: (1) the effect of the failure of the indictment to have indorsed thereon all of the names of the witnesses interrogated by the grand jury and the failure to supply the defendants, before trial, with a transcript of all of the testimony presented to that body; (2) a consideration of the admissibility and sufficiency of evidence to establish reasonable cause for an arrest and search without a warrant; (3) the alleged unreasonable manner in which that search was conducted and the admissibility of evidence obtained thereby; (4) an alleged denial of the right of the defendants to inspect records in police custody; (5) the admissibility of testimony concerning communications over the defendant Buxton’s telephone; (6) the alleged erroneous use of that testimony; and (7) alleged error in failing to exclude certain persons from the courtroom upon the request of the defendants.

Alleged Insufficiency of Indictment and Transcript

The grand jury presented the subject indictment to the Superior Court of Orange County on August 14, 1958. Indorsed thereon were the names of 15 witnesses. In due course, and prior to trial, the defendants were served with two

Section 943 of the Penal Code provides that: “. . . the names of the witnesses examined before the grand jury . . . must be inserted at the foot of the indictment, or indorsed thereon, before it is presented to the court.”

The purpose of these provisions is “first, to inform the party who are his accusers; and second, to inform the prosecutor who are the witnesses.” (People v. Freeland, 6 Cal. 96 , 98; People v. Northey, 77 Cal. 618 , 629 [ 19 P. 865 , 20 P. 129 ].) A failure so to insert or indorse the names of the witnesses does not render the indictment void or require that it be set aside. (People v. Cowen, supra, 41 Cal.App.2d 824 , 826.) Prior to 1927 such a failure was one of the grounds prescribed in section 995 of the Penal Code for setting aside an indictment (Stats. 1911, ch. 256, p. 435), but in that year, by amendment, this ground was eliminated (Stats. 1927, ch. 854, p. 1756), and in lieu thereof section 995a was adopted which now provides: “If the names of the witnesses examined before the grand jury are not inserted at the foot of the indictment or indorsed thereon, the court shall order them to be so inserted or indorsed; . . . ”

In the ease at bar the names of all of the witnesses who testified before the grand jury were given to the defendants. The fact that they were not inserted or indorsed on the indictment is a mere technical noncompliance of no legal consequence. The defendants claim that they do not know whether the names given them in truth constitute the names of all of the witnesses before the grand jury. However, the evidence adequately supports the implied finding of the trial court that the witnesses whose testimony has been transcribed were all of the witnesses appearing before that body.

At and prior to the trial of this case the present provisions of section 938.1 of the Penal Code were a part of section 925 of that code. These provisions require the preparation of a transcript of the testimony given in a grand jury proceeding resulting in an indictment; direct completion thereof within not to exceed 30 days after return of the indictment; provide that a copy of this transcript shall be furnished the indicted

The defendants claim that their motion for a mistrial should have been granted in order to enable them to move to set aside the indictment under Penal Code, section 995, for lack of probable cause. This contention is without merit for two reasons: (1) the evidence in the transcript, considering both

There is no showing that the failure to obtain the names of all the witnesses appearing before the grand jury or a transcript of their testimony until after the trial had commenced prejudiced the defense in this case in any way; due time for preparation was allowable and, for aught that appears from the record, was allowed by motion for a continuance; only four actual trial days had gone by before the required information had been given, whereas seven weeks transpired before the presentation of evidence was concluded and an additional 12 days passed before arguments were completed and the court rendered its decision; also the remarks of counsel for the defendants at the time he directed the court’s attention to the incompleteness of the transcript indicated a prior knowledge of the matters about which he was complaining. The law is the protector but not the puppet of the accused. When the reason for a rule has been served, strict adherence to the manner and time of compliance is not blindly demanded. The action of the trial court in proceeding with the trial was proper.

Reasonable Cause fob Abbest and Seabch

In late May 1958 Sergeant Curíale of the Santa Ana Police Department, received information from a known informant that bookmaking activities were being conducted in a tire shop in that city; this information was relayed to the police department and to the district attorney’s office of Orange County; and thereupon the tire shop was placed under surveillance. An investigator for the district attorney named Oxandaboure appears to have been placed in charge of the ensuing investigation. The surveillance was conducted by a number of officers; one officer, Sergeant Boyd, maintained surveillance for at least 20 days; it was noted that the defendants Carella and Krausnick were at the tire shop almost daily but did not engage in any of the work, which was done by two other men; two additional men, whom the officers assumed to be and described as “runners,” made frequent trips to and from the tire shop; on occasions, through the use of a telescope from a distant point, Carella was observed

Prom various hearsay sources the investigator for the district attorney learned that a man by the name of Ed or Eddie was making hook; that Ed did not take bets himself but that a bartender at a local bar would give him Ed’s telephone number; and that one of the men heretofore referred to as having been seen at the tire shop was working as a “runner” for Ed Krausnick, one of the defendants herein, and was picking up bets at the bar in question.

A few years before this time the investigator had received information from an undersheriff and a police officer that Krausnick was believed to be engaged in the bookmaking business. A lieutenant in the police department told the investigator that Krausnick was associated with persons who had been arrested for bookmaking and also that, from a check of the records, he believed Carella was so engaged. In 1957 Sergeant Curíale had been contacted by Carella who offered him money to find out about “some State men in town investigating bookmaking activities.”

The defendant Buxton was seen at the tire shop on three occasions; she came and left in an Austin automobile which was not repaired; on one occasion she was trailed and went to the home of Carella; on another such occasion she went to the home of Krausnick; and her Austin automobile was seen at a residence which the officers, in their testimony, referred to as the “phone spot.” The telephone at this residence was ascertained to be Lincoln 4-7367; it was registered under the name of “Edith Brown”; the Austin automobile seen at the tire shop and the residence was registered to Margery Buxton; the investigator for the district attorney had known the name Margery Buxton since 1957 when her Austin automobile was seen in front of a known bookmaker’s home; this bookmaker, a woman, told another officer, who in turn told the investigator, that the defendant Buxton at one time had rented her telephone at $25 per week to make bets on horse racing over the telephone and that Buxton later worked for Carella and took bets over the telephone for him.

On July 3d, Sergeant Boyd, the officer who had been engaged in surveillance of the tire shop, upon direction of the investigator for the district attorney, called the “phone spot” residence using the telephone number given him by the investigator, i.e., Lincoln 4-7367; a woman’s voice answered;

A stenographer from the district attorney’s office remained in the apartment for about three hours during which the telephone rang 45 times and many of the persons calling indicated their desire to place bets.

Immediately upon the arrest of Buxton the investigator for the district attorney, by telephone, advised other officers to raid the tire shop; the raid was conducted; the defendant Carella forthwith was placed under arrest for bookmaking, as was the defendant Krausnick when he arrived later. A search of the premises by several officers over a period of several hours thereafter took place. On one wall in the shop was a piece of paper bearing the “phone spot” telephone number and nothing else. Records taken into custody revealed the names of persons who were called as witnesses and testified to circumstances which support the conclusion that the defendants Carella and Krausnick had furnished them with a telephone number; that this was the number for the “phone spot" in question; that these defendants furnished the witnesses with code numbers to identify them when placing bets; and that they placed bets after calling this number.

The defendants Carella and Krausnick do not contest the sufficiency of the evidence to sustain their conviction but contend that there is no legal evidence upon which to base a finding of probable cause in support of their arrest and the search of their premises without a warrant; that the arrest and search were unlawful; and that the evidence produced thereby was inadmissible.

The defendants insist that the information which forms the basis for probable cause must be obtained by the person who makes the arrest or conducts the search; that informa

A search made as an incident to a lawful arrest based on reasonable cause to believe that the person arrested has committed a felony, is a lawful search, even though made without a warrant. (United States v. Rabinowitz, 339 U.S. 56 , 60 [ 70 S.Ct. 430 , 94 L.Ed. 653 ]; Agnello v. United States, 269 U.S. 20 [ 46 S.Ct. 4 , 70 L.Ed. 145 , 51 A.L.R 409 ]; People v. Hammond, 54 Cal.2d 846 , 853 [ 9 Cal.Rptr. 233 , 357 P.2d 289 ]; People v. Ingle, 53 Cal.2d 407 , 413 [ 2 Cal.Rptr. 14 , 348 P.2d 577 ]; People v. Rios, 46 Cal.2d 297 , 299 [ 294 P.2d 39 ]; Willson v. Superior Court, 46 Cal.2d 291 , 294 [ 294 P.2d 36 ].) The court and not the officer making the arrest and search determines whether the information upon which his belief was based constitutes reasonable cause therefor. (People v. Fischer, 49 Cal.2d 442 , 446 [ 317 P.2d 967 ]; People v. Boyles, 45 Cal.2d 652 , 656 [ 290 P.2d 535 ].) Upon this issue relevant evidence includes testimony concerning information “obtained from others” (People v. Boyles, supra, 45 Cal.2d 652 , 656); information supplied by a reliable informer (People v. Hammond, supra, 54 Cal.2d 846 , 853), as well as information supplied by an anonymous informer which is corroborated “by similar information from other sources or by the personal observations of the police” (Willson v. Superior Court, supra, 46 Cal.2d 291 , 295; People v. Prewitt, 52 Cal.2d 330 , 337 [ 341 P.2d 1 ]; People v. Soto, 144 Cal.App.2d 294 , 299 [ 301 P.2d 45 ]); also information received through official channels (People v. Fischer, supra, 49 Cal.2d 442 , 446; Willson v. Superior Court, supra, 46 Cal.2d 291 , 293-295; People v. Hood, 150 Cal.App.2d 197 , 201 [ 309 P.2d 856 ]; People v. Ames, 151 Cal.App.2d 714 , 722 [ 312 P.2d 111 ]; People v. Gusukuna, 152 Cal.App.2d 135 , 137-138 [ 312 P.2d 714 ]); and “is not limited to evidence that would be admissible at the trial on the issue of guilt.” (People v. Boyles, supra, 45 Cal.2d 652 , 656.) It is not necessary that the information come directly to the officer

A contention identical to that raised by the defendants herein, who claim that the information relied upon by the officers as a basis for reasonable cause constitutes hearsay upon hearsay and that evidence thereof is inadmissible, was urged upon and rejected by the court in People v. Gorg, supra, 157 Cal.App.2d 515 , 520. The contention is without merit.

Reasonable or probable cause for an arrest exists upon the showing of “circumstances sufficiently strong to warrant a reasonable man in the belief that the charge is true.” (People v. Brite, 9 Cal.2d 666 , 687 [ 72 P.2d 122 ]; People v. Ingle, supra, 53 Cal.2d 407 , 412; Bompensiero v. Superior Court, 44 Cal.2d 178 , 183 [ 281 P.2d 250 ].)

The evidence in the ease at bar adequately supports the conclusion of the trial court that the officers had reasonable cause to believe that the defendants had committed a felony, i.e., the various bookmaking offenses with which they eventually were charged. Prom reliable sources it had been learned that the defendant Buxton had operated and was operating a “phone spot” and that she had associated with an admitted bookmaker; she was seen at the tire shop on a number of occasions and had been followed to the homes of the other defendants; the actions of the defendants Carella and Krausnick, while at the tire shop during the time it was under surveillance, justified a strong suspicion that they were engaged in bookmaking; officers also were informed that bets might be placed with these defendants by telephone; the telephone at the “phone spot” was under an assumed name; an officer called and placed a bet over this telephone which

The contention of the defendant Buxton that the telephone bet placing incident was not grounds to arrest her because the arrest occurred 15 minutes after the telephone call had been completed and the owner of the female voice answering the call could have left the residence in the meantime is without merit. The telephone call was made to the residence in question; a female voice answered; the automobile of the defendant Buxton had been seen at this residence a number of times; it was the same automobile that had been seen at the tire shop; and information from other sources indicated that she was operating a “phone spot.” This information was corroborated by the actions of the person inside the premises Avho did not go to the door when the police identified themselves but hurried into the bathroom and flushed the toilet.

In determining the issue of probable cause only the information possessed by the officer at the time he was required to act will be considered (People v. Murphy, 173 Cal.App.2d 367 , 377 [ 343 P.2d 273 ]; People v. Wiley, 162 Cal.App.2d 836 , 838 [ 328 P.2d 823 ]), and the weight to be given that information is a matter resting within the sound discretion of the trial court. (Lorenzen v. Superior Court, 150 Cal.App.2d 506 , 510 [ 310 P.2d 180 ].) The evidence at bar fully supports the implied finding of the court that an arrest without a warrant was authorized in this case.

The defendants claim that the period of time consumed in searching their premises and the manner in which the search was conducted classified it as unreasonable, exploratory and general, rendering the evidence obtained thereby inadmissible.

The officers occupied the tire shop and the "phone spot” for several hours. The defendants claim that the places were ransacked. With less emotion, the investigation may be described as very thorough. It appears that many of the articles seized were not offered in evidence. Those offered and admitted generally may be described as racing forms; "owe sheets”; "betting markers”; and a paper bearing the "phone spot” telephone number, i.e., Lincoln 4-7367. The officers making the search testified that they were looking for evidence of bookmaking. The exhibits in question constituted such evidence. The search and seizure thereof were proper as an incident to the arrest. (In re Dixon, 41 Cal.2d 756 , 761-762 [ 264 P.2d 513 ]; People v. Coleman, 134 Cal.App.2d 594 , 599 [ 286 P.2d 582 ].) Some of these exhibits were in plain sight and no valid contention can be made that any ransacking or general search was involved in their taking. (Marron v. United States, 275 U.S. 192 , 198 [ 48 S.Ct. 74 , 72 L.Ed. 231 ]; People v. Roberts, 47 Cal.2d 374 , 379 [ 303 P.2d 721 ]; People v. Cahill, 163 Cal.App.2d 15 , 20 [ 328 P.2d 995 ]; People v. Littlejohn, 148 Cal.App.2d 786 , 791 [ 307 P.2d 425 ].) Others of these exhibits were retrieved from trash barrels in the rear of the premises but were well within the area of reasonable search. (People v. Cisneros, 166 Cal.App.2d 100 , 102 [ 332 P.2d 376 ]; People v. Smith, 166 Cal.App.2d 302 , 305 [ 333 P.2d 208 ]; People v. Guy, 145 Cal.App.2d 481 , 489 [ 302 P.2d 657 ]; Trowbridge v. Superior Court, 144 Cal.App.2d 13 , 18 [ 300 P.2d 222 ].) The trial court was entitled to conclude that the officers were searching for evidence in support of the crime for which they arrested the defendants; that they were not searching for proof to establish that the defendants had committed other crimes; and that the search was not general or exploratory.

The defendants rely upon the decision in People v. Mills, 148 Cal.App.2d 392 , 402 [ 306 P.2d 1005 ] in support of their position. However, the situation in that case is clearly distinguishable from the one at bar. In the cited case the defendant was arrested for one offense; incident to this arrest a search was made; the search uncovered evidence in proof

Among other articles taken from the tire shop was a general ledger which, it developed, contained the names of people who had placed bets with the defendants, including the names of three witnesses called by the prosecution. It is contended that the testimony of these three witnesses is inadmissible because their names were obtained from a ledger which was seized during the search; that the search was unlawful; and that information thus acquired could not be used against the defendants. This contention is based upon the proposition that neither the evidence seized during or any derivative of an unlawful search may be used against a defendant. (Silverthorne Lbr. Co. v. United States, 251 U.S. 385 , 392 [ 40 S.Ct. 182 , 64 L.Ed. 319 , 24 A.L.R 426 ]; People v. Berger, 44 Cal.2d 459 , 462 [ 282 P.2d 509 ]; People v. Mills, supra, 148 Cal.App.2d 392 , 402.) On the other hand, a search made as an incident to a lawful arrest “may be exercised in aid of discovery of evidence of the particular crime for which the arrest is made.” (People v. Mills, supra, 148 Cal.App.2d 392 , 401.) The testimony of the three witnesses was admitted in proof of the offenses for which the defendants were arrested. Therefore, seizure of the ledger from Avhich their names were taken was proper. Furthermore, the ledger properly was seized as evidence that the defendants on the day they were arrested were engaged in bookmaking and Avere keeping or occupying a building with a book, paper, apparatus, device or paraphernalia for the purpose of recording or registering bets. The fact, if it be a fact, that the ledger also was proof of other crimes committed by the defendants, did not render its use for the purpose of discovering evidence unlawful. The fact that eAndence uncovered by a search is proof not only of the crime for Avhich the accused is arrested but also of other crimes, does not establish that the search was

The orders of the trial court respecting the admission of testimony to prove reasonable cause as a basis for the arrest of the defendants without a warrant were proper. Its implied findings that such cause existed; that the ensuing search of the defendants ’ premises was made as an incident to their arrest; and that the search was reasonable are supported by the evidence and the law. Its admission of the evidence obtained in the course of such search, including the testimony of witnesses whose identity was learned through that search, was not error.

Inspection op Recobds

During the trial a record of the notes made by Sergeant Boyd in the course of his investigation, the notes of Investigator Oxandaboure respecting his observations during the time he had the tire shop under surveillance, and a report compiled at the direction of Investigator Oxandaboure respecting some of the automobiles seen at the tire shop, were produced and inspected by the defendants. The defendants made requests respecting other alleged reports which either were not acted upon or were denied by the court. It is contended that this action constituted error.

The defendants’ requests were based on the rule as stated in People v. Chapman, 52 Cal.2d 95 , 98 [ 338 P.2d 428 ] that: “The defendant in a criminal ease can on a proper showing compel production of documents in the possession of the People which are relevant and material to the defense, and this rule has been applied to written statements of prosecution witnesses relating to the subject matter of their testimony where the statements were sought by the defense for purposes of impeachment.”

The witness Oxandaboure was examined concerning certain notes and reports; testified that the notes produced, which concerned his surveillance of the tire shop, were all of the notes he had pertaining to his observations; that the information contained on the statements respecting the appearance of certain automobiles at the tire shop during the course of the investigation came from both oral and written reports of other officers and was used as a work sheet for the purpose of checking on the activities of certain automobiles; that he received both oral and written reports about the investigation which was being conducted; and that there “may be” some reports besides those theretofore produced. After considerable

Sergeant Curíale testified that he made a written report respecting his conversation with the informant whose statement about suspected bookmaking initiated the investigation of the tire shop activities. A request that this report be produced was taken under submission and the witness was ordered to make himself available if the court should require the production of this evidence. Nothing further appears in the record concerning this request. The fact that the defendants did not subsequently call the matter to the court’s attention is proof that it was of little consequence. Evidence of this informer’s statement was primarily of a preliminary nature; it showed the reason for instigating an investigation ; as support for a finding of probable cause, it presented

Subsequently, Sergeant Curíale was recalled for further examination. Nothing was said about the foregoing report. However, his examination at this time revealed that he had received reports from Sergeant Boyd and Investigator Oxandaboure; some of the reports were written and others were oral; the written reports from Boyd usually were written at the district attorney’s office and “copies” were forwarded to him; the reports from Oxandaboure were oral and were relayed over the telephone. Defendants’ counsel objected to a question asked the witness concerning the contents of these reports, and the objection was sustained on the ground that it was not clear whether the question referred to oral or written reports. Thereupon the witness testified respecting the receipt of oral reports from Boyd and Oxandaboure which, in substance, related the incidents observed by them in the course of their surveillance of the tire shop. During his cross-examination, in response to a leading question asked him by defense counsel, the witness replied affirmatively to an inquiry as to whether reports “filed” by “Mr. Boyd” and “Mr. Baird” were available; and when asked if “those files” covered reports from anyone else replied: “Prom Mr. Oxandaboure, as I recall.” Previously the witness had not referred to any reports from Mr. Baird. Thereupon counsel requested the court to order the witness to produce the reports “which he claimed he received from Mr. Boyd and Mr. Baird and Mr. Oxandaboure, as I think they may be relevant on the question of reasonable cause.” The court denied the motion upon the ground that the information the witness received and upon which he relied in arresting the defendants was obtained from oral reports and not from any written reports. Although an inquiry respecting the contents of written reports which concern the subject matter of a witness’ testimony and to which he has access may be permissible on cross-examination, and a request to produce such reports should be granted for this purpose (Jencks v. United States, 353 U.S. 657 , 665 [ 77 S.Ct. 1007 , 1 L.Ed.2d 1103 ]; People v. Chapman, supra, 52 Cal.2d 95 , 98), a proper showing to justify production should be made. (People v. Chapman, supra, 52 Cal.2d 95 , 98; People v. Riser, 47 Cal.2d 566 , 586 [ 305 P.2d 1 ]; People v. Bermijo, 2 Cal.2d 270 , 276 [ 40 P.2d 823 ].) The subject request that the witness produce all the reports which he claimed he received was

We have reviewed the record, including the evidence, and conclude that the defendants sustained no prejudice as a result of any alleged error in refusing any of the foregoing requests.

Admission op Evidence Be Communications Over Buxton Telephone

The stenographer who remained in the Buxton apartment after Buxton’s arrest answered approximately 45 telephone calls and recorded in shorthand the ensuing conversations. A transcript of these conversations was admitted in evidence. The defendants contend that the receipt of the messages by the stenographer constituted an interception of communications intended for the defendant Buxton and was violative of the Federal Communications Act (47 U.S.C.A., § 605) as well as section 640 of the Penal Code, and that the evidence thus obtained was inadmissible. Both of these statutes are concerned with the interception of telephone messages. No interception occurred in the instant case; no

There was no interference with the means of communication in the case at bar. Furthermore, the federal act protects only the sender and not the intended recipient of a telephone message. For this reason, an intended recipient may not object to the divulgence of messages intended for him but received by another person. (People v. Kelley, 22 Cal.2d 169 , 174 [ 137 P.2d 1 ]; People v. Miller, 146 Cal.App.2d 444 , 449 [ 304 P.2d 208 ].) The prohibition prescribed by Penal Code, section 640, is limited to the taking or making of an unauthorized connection with a telephone wire or instrument, or to the obtaining of the contents of a telephone message “while the same is in transit or passing over any . . . telephone.” The present case does not present a situation violative of these provisions.

In many instances when the stenographer answered a phone call the sender asked, “Is this Lincoln 4-7367,” and then made the betting request; in others, the caller asked for “Jerry” and was told that “Jerry” was sick and that “I’m sitting in for her, ’ ’ and thereupon the caller made the betting request; and in other instances the calling party merely gave a code number and made the betting request. In each instance the sender intended to give a message to the person who actually answered the telephone; in some instances, because no inquiry was made to ascertain the identity of the person answering, it must be concluded that the sender intended to give the message to whoever answered the call, while in others, although the original intent was to communicate with “Jerry,” when it was determined that she was not present, the message was given to the stenographer. In either event there was no interception. (Billeci v. United States, 184 F.2d 394 , 396; cf. United States v. Yee Ping Jong, 26 F.Supp. 69 , 70.) The foregoing recital shows that the messages were not intended exclusively for the defendant

Admissibility op Telephone Evidence

Evidence of the telephone conversation between the stenographer and persons calling into the premises to place bets was admissible to prove the purpose for which the premises were being used. (People v. Fischer, 49 Cal.2d 442 , 447 [ 317 P.2d 967 ]; People v. Vertlieb, 22 Cal.2d 193 , 196 [ 137 P.2d 437 ]; People v. Kelley, supra, 22 Cal.2d 169 , 176; People v. Miller, supra, 146 Cal.App.2d 444 , 449; People v. King, 140 Cal.App.2d 1 , 9 [ 294 P.2d 972 ] ; People v. Cohn, 94 Cal.App.2d 630 , 637 [ 211 P.2d 375 ] ; People v. Onofrio, 65 Cal.App.2d 584 , 590 [ 151 P.2d 158 ]; People v. Joffe, 45 Cal.App.2d 233 , 235 [ 113 P.2d 901 ]; People v. Reifenstuhl, 37 Cal.App.2d 402 , 405 [ 99 P.2d 564 ].) The defendants’ objections to the admission of this testimony properly were overruled.

The defendant Buxton contends, however, that even if the telephone conversations were admissible to prove the use being made of the premises where the telephone was located, they were not admissible to show her participation in the alleged conspiracy. In this regard attention is directed to the observations of the trial judge in the course of his summation of the evidence respecting the similarity in names and numbers given in the telephone conversations and the names and numbers found in the “owe sheets” taken from the tire shop. Many of these sheets were in the handwriting of either Carella or Krausnick. It is contended that in making these comparisons the trial judge accepted the truth of the matters stated in the telephone conversations and in doing so based his decision on hearsay testimony; that there is no other evidence to support the conspiracy against the defendant Buxton; and, for this reason, the judgment as to her must be reversed.

The evidence of telephone conversations to which objection is made is direct proof of the fact that these conversations were received over the telephone in the Buxton apartment. It is not hearsay. (Rogers v. Superior Court, 46 Cal.2d 3 , 8

Contrary to the contention of the defendants, there is evidence in the record in addition to the foregoing circumstances which connect the “phone spot” with the tire shop operation; the telephone number of the telephone at the Buxton apartment appeared on a piece of paper on the wall at the tire shop; no name or other identifying legend appeared thereon; it is apparent that only those acquainted with the bookmaking operations knew the significance of this number. The witnesses who had placed bets at the instance of the defendants Carella and Krausnick were given a “phone

Failure to Exclude Persons prom Courtroom

At the commencement of trial counsel for the defendants moved that “all of the officers be excluded, or all witnesses be excluded from the courtroom until such time as they are called upon to testify.” The court granted the motion except as to one “advisory officer to the District Attorney” who was permitted to remain. The defendants contend that the failure to exclude “all persons” from the courtroom was error, citing People v. Elliott, 54 Cal.2d 498 [ 6 Cal.Rptr. 753 , 354 P.2d 225 ] and People v. Prizant, 186 Cal.App.2d 542 [ 9 Cal.Rptr. 282 ] in support of their contention.

In their brief the defendants refer to the subject motion as one made pursuant to the provisions of section 868 of the Penal Code. That section governs only preliminary hearings before a magistrate. The proceedings under review in the cited cases were preliminary hearings which involved an application of the aforesaid code provision. The ease at bar is not governed by section 868 of the Penal Code but by section 2043 of the Code of Civil Procedure which confers a

The record before us indicates that the trial judge gave serious, conscientious, and patient consideration to the many objections and contentions made on behalf of the defendants, and the extensive arguments presented in connection therewith on many occasions during the course of the trial, and in every manner extended them the protection afforded by law. They had a fair trial.

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

Griffin, P. J., and Shepard, J., concurred.

A petition for a rehearing was denied May 9, 1961, and appellants’ petition for a hearing by the Supreme Court was denied June 6, 1961.