*1 Dist., 1, No. 4523. Second [Crim. Div. Three. Dec. 1950.] THE PEOPLE, Respondent, COPPLA, v. ALPHONSE
Appellant. Bradley Appellant. and Max John J. Solomon for Attorney Howser, General, Miller, Fred N. and Elizabeth Deputy Attorney General, for Respondent. Coppla and VALLEE, one Rochlin were J. having
count one of an information Penal Code violated 337a, they section subdivision in that did hold certain memo- represented and referred randa and having races, bet on the result count two with violated Penal Code section in that engage selling did on the result of horse race. Both counts were based on the same facts. The *2 court, a jury, Coppla guilty without found of the offense charged guilty in count one and of the offense in guilty count two. Bochlin was found not counts. on both Coppla, defendant, appeals judgment, referred to as from the under county jail which he was sentenced to six months in the probation, denying on from the order motion for a new trial. January 21,
On p. m., defendant, an automo- bile, turned off Angeles alley. Seventh Street Los into an stopped He alley the car in the and honked the horn twice. Bochlin, standing who had been in front of a newsstand near the alley, walked to the car. Defendant handed Bochlin four white envelopes through sealed car the window. Defendant and Bochlin were immediately. arrested One of the sealed envelopes “Cook,” had “Herb,” one “Johnny,” one and one “Taxi” written on the outside. Seven sealed in a brown paper bag on the front seat of the car. There was envelope $68 one which had “$149.70” written on the out- Digest” side. “California was in another envelope. Some of the other sealed envelopes writings. contained In the locked trunk of the car arresting officer found cards with names, numbers symbols them, stamp-dated of them November 19,1949, stamp-dated January 21,1950, and two stamp-dated blank cards November 26, 1949. All of the enve- lopes in the car were sealed.
A police officertestified that some of the in the sealed envelopes were owe betting sheets and markers for races held January 21,1950, and that the cards found in the locked trunk betting of the ear were markers. He testified that in Los Angeles bets on commonly horse races are made a bettor gives money who he wants to the name of the horse on, agent. wants to bet to a agent bookmaker’s makes a notation of the name or bettor, initials of the horse, telephones amount. “phone that information to a day’s spot.” After the races run, “phone have been spot” compiles an owe agent sheet for each showing the number of on, the horse bet race, the name or bettor, initials of the amount bet—whether win, place or show—, position race, and the paid amount horse, if
anything. then distributed the book- The owe sheets are agents they may charge “phone spot” maker in to the agent Bach pay bettor, from the case be. or collect showing bets which he has receives the sheet the results written on the taken. He testified that names car, Rochlin, handed of those found in the and on some agents on the owe the names of who had taken bets indicated sheets. him arresting told officer testified delivering envelopes; that he did not know what them; why envelope marked defendant was asked any- in it; he said he did not know
“$149.70” $68 thing that; about he said he was “Army” was; “Army”; that he did not who that he picked things say up; these he refused to where. Defendant testify.
Defendant claims that the evidence is insufficient to unlawfully feloniously willfully, establish that he “did engage poolselling bookmaking.” agree. We every
Penal provides Code section person writing, place public
without time or is of a *3 offense, apply persons and “This section shall may any designated who commit of the acts in subdivisions section, 1 6 occupation, inclusive of this as a business or every person apply persons but shall also or do any single specified in a instance one of the acts in said sub- “engage occupied divisions 1 to 6 inclusive.” To in” is to be in, employed (Webster’s ed.) to be in. Diet., Internat. 2d New “Bookmaking” making (People is “the of a book of bets.” Bradford, 37].) v. 95 Cal.App.2d 378 P.2d “Pool [213 selling” “selling is the or distribution of shares or chances wagering (Webster’s Diet., ed.) in a pool.” New Internat. 2d merely pos- established was in The evidence that defendant bookmaking paraphernalia. 337a is com- session of Section in denunciation of acts in con- prehensive exhaustive its and. bookmaking. selling pool Nowhere is nection bookmaking paraphernalia, without knowl- possession mere of not under- edge fact, of the denounced as offense. We do respondent appears contends otherwise. Its claim stand that it can inferred from the evidence that defendant to be that be selling bookmaking. People engaged pool v. 886], Greco, Cal.App.2d 632 P.2d it was held [118 proof possession papers defendants had in mere that the their recording purpose of did not establish that for the bets purpose of record- kept occupied premises certain ing of Penal Code section bets, a violation 337a. em occupied no defendant was
There was
evidence that
single
in a
ployed
pool selling
bookmaking
instance at
knowingly
he
aided
time or that
another
or in
book
the sale or distribution of shares or chances
wagering pool.
in a
There is no evidence that
knew the
betting
in the sealed
markers or owe
sheets,
any knowledge
or that he had
of the contents of the
ownership
locked trunk. There is no
evidence
of the
automobile.
writing
There is no evidence
envelopes, or
of the material, was that of defendant.
evidence,
Without such
presumed
must be
that it was not
handwriting.
in his
prosecution having
presented
part
as a
of its case the statement
defendant that he
did not know what the
sealed
contained, is bound
by that
evidence
proof
contrary.
absence
to the
(People
Toledo,
v.
Defendant was
charge
that he held memo-
randa and represented
and referred to
bet on
the result
horse races. This determination neces-
sarily
predicated
must have been
on the conclusion that de-
fendant did not know
possession
that was in
paraphernalia. As he did not know
possession
was in
paraphernalia,
there is no evidence that he
selling and bookmaking.
ap-
far
So
pears,
merely
defendant was
messenger boy
delivering enve-
lopes, the
contents which were unknown
him.
Steccone,
Neither Ross, ante, p. point. nor is in *4 were charged the Steccone case two defendants with conspiracy "keep and maintain . places to rooms and . . with books, papers, paraphernalia purpose devices for and registering wagers recording and bets and on horse races.” receipt money There was evidence of the actual as bets on payoffs horse races and of to winners. There was also evidence 770 bookmaking paraphernalia of unsealed presence other, and of in the home of the and tavern of one defendant evidence other. was by one with the placing of bets destroy register by defendant to attempt of an custody. All of the elements he had been
after by prosecution. Conse charged proved the offense testify to the defendants held the failure of quently it was against be considered could explain the evidence them and tending the truth of such evidence jury to indicate “as indicating among inferences that reason as and therefrom, unfavorable ably those to the defendant drawn ’ failure of a probable.1 The defendant are the more supply be “used cannot as to facts within prosecution” (People el, Z 35 a failure of off 160]), which is the case here Cal.App.2d the case in v. Steccone. and was not charged bookmaking or was with Boss the defendant (1) pool selling. charged “with violation of Penal pur for (occupying subdivision a room 337a, Code section races); (2) registering bets on horse sub poses recording or bets); (3) subdivi (recording registering or division (offering accepting bets).” He was convicted of sion count All of the acquitted and two and three. counts one charged in counts one and two were elements of offenses prosecution. The failure of the defendant proved therefore, be could, considered. charged keeping defendant was not with present paraphernalia for the occupying place with or or (Pen. Code, recording registering a bet purpose or § recording 4), registering (subd. a bet 2), or with subd. being occupant place permitting of a with prohibited by 1, 2, 3, purpose subdivisions be used (subd. 5), offering accepting 337a or with of section acquitted holding 6). memo- (subd. a bet Defendant moneys papers which referred to horse races randa and engaging 3). of, and convicted (subd. with, He was pool selling, 1. a violation which, theory, can be considered corpus of which going delicti of the offense to establish selling—is convicted—bookmaking envelopes, holding papers, of memoranda necessary bet on races. The which referred to acquittal holding memoranda connotation moneys bet on horse races is which referred to *5 he had such memoranda guilt possession. Defendant’s
necessarily depended upon knowledge. If this he did not know that he was in possession of such memoranda and he guilty selling. could not be slightest not was evidence that defendant in book making, bets, pool selling, a book of or in selling or pool, distribution of shares or in a wagering chances doing. is, that he aided and abetted It another course, aiding act, not law that mere an unlawful with out knowledge, corpus is itself an offense. The de licti of the offense proved. was not absence of prima proof corpus delicti, facie of the anything the defend ant might have said that be construed as an admission is not anything.
The and order denying the motion for a new trial are, and is, each reversed. is remanded for cause a new trial.
Shinn, J.,P. concurred. (Parker), WOOD J. —I dissent.The appre was hended in the act of owe sheets for a bookmaker. He not to chose the circumstances which predicament. him in lawyer argues, His effect, proved it was knew what he delivering. my opinion there were several facts which together formed a for an basis inference that defendant knew aiding a bookmaker. He was the driver of the automo only person bile and the therein. On the front seat of the right automobile to his bag containing there was a seven in each of which there papers commonly used bookmakers. In the locked trunk of the automobile (not there were several cards envelopes) which were com monly used bookmakers—one of the cards was dated Janu ary 21, (the arrest). of the date At the time of his arrest the defendant told the put officers that would on automobile a lot and “leave it for pick up.” his wife The defendant in delivering admitted that “working “somebody” “Army.” for” the name questions by His answers to the officers as to the name person he was “working for” evasive. told them he “picked things up.” these He refused tell where “he picked up.” them No address was.on four enve- bag. of the in the
lopes delivered on seven writing envelopes (except only each one on “$149.70”) initial, initials, which was written one two name was in common use. On envel- or a one-word “ ”H, the letter another were the ope there was there “Joe,” the names, “B.L.” On others there were letters “Johnny,” “Whitie,” “Taxi,” “Cook,” “Al,” ‘‘ “Herb,” ” names constituted the Venice. common direction Such *6 guidance the envelopes the of defendant in the things” city approximately “these of two deliveries of arrest, of persons. million At the time the defendant said doing, quite what he was that his father- that “he didn’t quite away” just passed upset.” in-law “he was and added.) (Emphasis opinion
In the that my evidence shows defendant exercised (as driver, such over automobile the sole occu- dominion the arrest) disposition pant, director of the it after the and of reasonably (1) that it be inferred that he had access could (which bookmaking papers in the locked trunk (2) knowingly envelopes), and that bookmaking card dated possession of the therein which was (the arrest), knowingly January 21, 1950 date of the bookmaking possession was in other cards therein the several my opinion presence prior of such bore dates. trunk, wholly inadequate bookmaking papers in direc- delivery, actual tion on for their defendant’s containing delivery sheets, of four owe presence several the front seat of other such his automobile, employment bizarre features of as delivering. by him, what he related indicate that knew testify, my regardless opinion, of defendant’s failure to up” involved connected with de- here “was many possession fendant. He was in actual and exclusive bookmaking papers, caught in the act of overt judge my opinion trial delivering several them. reasonably inferred defendant knew that the could have papers and that in envelopes contained aiding bookmaking. them was having proved from which such prosecution The facts be knowledge part defendant could on the inference significance. was of failure of defendant to drawn, alleged alleged and his regarding employment The his facts knowledge envelopes were, lack of of the contents of the knowledge. power his It was within course, within infer explain circumstances which formed the basis for an aiding cir ence he knew he was if those explained. cumstances could be His failure to affords support additional conviction. In Steccone, Cal.2d the de Makris, fendants were Peter evi John Steccone and showed, among things, persons dence other the names bookmaking. “Pete" and “John" were involved in therein, testify, argued defendants names that the were common names and the evidence did not warrant an persons inference that the defendants were the involved. page court said if mean 239: “But ‘Pete’ did not Steccone, Makris ‘John’ did not mean appellants could and should have denied it. These facts within power their dispute, but failed to testify. it So was said in like circumstances Adamson, pages 27 Cal.2d 490-491 : 3] ‘. . if appears . from the evidence that could reasonably expected deny presented against him, jury may consider his failure so as to do tending to indicate the truth such evidence indicat ing among reasonably inferences that be drawn therefrom, those unfavorable to the defendant are the more *7 ” probable.’ It page was also said in that case at 239 that a defendant’s failure to facts within his to supply cannot be used to proof by prosecution, a failure of “but such is not here, the case record as the disclosesnumerous evidencing corroborative facts appellants’ collaboration in respective activities at their establishments." In Ross, ante, p. 85], involved page the court 121: fail said at “Defendant’s ’’ ure to significant. take the stand is therein It was also said “ page at 122, quoting from failure another case: ‘Such by him deny under oath the evidence woven about him was potent itself a fact for consideration ’ ’’ trial judge and judgment. affords support additional for the Zoffel, 35 Cal.App.2d wherein it was said that a defendant’s failure to can- supply be used a prosecution, failure the court also stated that under the evidence therein certain articles, up referred evidence, connected “not ’’ my stated, opinion defendant. As hereinabove present involved in up" “connected with the defendant. my was found not opinion, the fact that holding and one, with
under count wherein money bet on a horse forwarding papers which referred to necessarily judge found that race, the trial does not mean might envelopes. what was in the It upon misin- acquittal was based be that the on count one meaning scope of said section terpretation as to the prosecuted on count under which defendant upon attorney defendant, for' one. It is to be noted that officer, that at voir dire examination of an established 21,1950, January the last horse p. time of the arrest 7 m. day been any place race the United States said attorney asserted run. It to be noted said then is also your “charged 3, if with a Subdivision that the defendant was being please, pledged, for the purpose Honor which is forth,” money wagered, forwarding and so attorney m. would be argued p. at 7 impossible to be on account result interpreted judge If race. the trial said subdivision attorney argument defendant’s in accordance interpre- acquittal upon and based the on count tation, acquittal would not mean that on count one judge what was in found that defendant did not know envelopes. af- my opinion the of conviction should -
firmed. Supreme Court hearing petition for Respondent’s Shenk, J., J., Gibson, 1950. C. December was denied hearing. Spence, J., voted for a