Majority
Defendant appeals from an order denying his motion for á new trial and from the judgment of conviction. He was accused by information with violations of section 337a of the Penal Code as follows: Count I for violation of subdivision 1; count II for violation of subdivision 2; count III for violation of subdivision 6. Trial by jury was waived. He was found not guilty on counts I and III but he was convicted under count II of a violation of subdivision 2 hereinafter quoted. His motion for a new trial having been denied, he was sentenced to the county jail for 180 days, which sentence was suspended and probation granted for three years under specified conditions.
The facts are substantially as follows: On October 12, 1940, two police officers entered apartment 207, located at 726 North Van Ness Avenue, in the city of Los Angeles, at about 2 o’clock in the afternoon. It was a single apartment consisting of a combination living room and bedroom, with kitchen and bath adjoining. Upon entry the officers found appellant alone in the apartment, dressed in his trousers but without a shirt. On the kitchen table the officers found the following: two telephones, one bearing a Hillside number,
On the trial appellant testified that he had occupied this apartment for two weeks prior to the date of his arrest “to sleep there”; that a party named “Brownie” granted him the free use of the apartment; that it was his residence and that he slept there and was there every day during the two weeks. He denied all connection with the acceptance or writing of bets, or that he “forwarded” any of them, or that he had ever seen any bet recorded or that he knew what the apartment was used for. He had come up to the apartment on that afternoon to take a shower.
Subdivision 2 of the section provides that anyone who, “whether for gain, hire, reward or gratuitously or otherwise keeps or occupies for any period of time whatever any place . . . or any part thereof . . . with a book or books, paper or papers . . . apparatus, device or paraphernalia for the purpose of recording or registering any bet or bets upon the result of a contest ... is punishable ...”
The narrative above recited establishes conclusively that appellant occupied an apartment containing: two telephones with different numbers and racing paraphernalia used by bookmakers. He had occupied the apartment every day for two weeks, was found alone and at that very time telephones were in use by outside parties who attempted to make bets. It was 2 o ’clock in the afternoon when it is commonly known that races are being run, as emphasized by the experience of Officer Barry in answering the telephones during the brief space of time in which he was in the apartment.
But appellant contends that the state did not sustain the burden of proving beyond a reasonable doubt that the occupancy of the apartment was for the purpose of recording bets. In a recent case, the proof received against the de
Finally appellant offers to establish his innocence or the right to a reversal of the judgment on his statement that the deputy district attorney, on the hearing of the motion for a new trial, stated to the court that in his opinion the evidence was not sufficient to sustain the judgment. The prosecutor might be commended for his frankness. But, however meritorious such opinion might have been, it was void of authority and without persuasive origin as against the finding of the trial court. The complete record of the trial, together with the inferences which the judge may fairly have drawn, embody the total of opinions and facts which we may consider.
Judgment and order are affirmed.
Wood, J., and McComb, J., concurred.