255 P. 205 | Cal. Ct. App. | 1927
[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *30
Defendant was charged in two informations with violations of section
Thomas E. Remington, a police officer of San Diego, testified that on March 3, 4, and 5, 1926, he went to defendant's place of business, which consisted of a cigar and candy store, with a card-room in the rear; that at said time horse-races were being run at Tijuana; that on his first visit the officer placed with defendant a bet of one dollar on a Tijuana horse-race; that on the next day he placed a similar bet with the defendant, and that on March 5th he placed a third bet with the defendant; that at each time the defendant made a notation of the bet on a scratch pad and telephoned the names of the horses, the initials of the witness and the amount of the bet; that the witness was familiar with book-making; and that he went to defendant's place of business for the purpose only of securing evidence. It further appears that Officer Ward gave to Officer Remington money with which to place bets with the defendant; and that on one occasion during the early part of March he saw Officer Remington enter the defendant's store. Certain book-maker's paraphernalia were found at defendant's place of business and received in evidence. The defendant testified that he had not placed any bets with the complaining witness, and that he did not have any knowledge of the book-maker's paraphernalia which were found concealed in his place of business.
Appellant complains of certain instructions. [1] The trial court instructed the jury that: "It is not the contention that there were four different acts here committed by the defendant at the time and places mentioned in the information. *32
The contention is that the same act, same course of conduct, violates four different laws." Appellant urges that the jury was confused and misled by the language used in this portion of the instruction. The remainder of the instruction reads as follows: "It all relates to the same set or series of acts; and it will be for you to determine whether or not he is guilty of one, two, three or four of these charges, or whether he is not guilty of any one of them. And unless you are satisfied, as I have said, beyond a reasonable doubt that he has committed one or more of these acts, then it will be your duty to acquit him on all four of the charges." We do not believe the jury was confused or misled by this instruction, especially when it is remembered that the jury found the defendant not guilty as to the three counts charged in information No. 47,989, and guilty only as to the count charged in information No. 47,988. [2] Section
[3] Appellant next complains of the following instruction as not being in accord with the spirit of section
[4] Appellant's next contention is that the court erred in giving the following instruction, for the reason that part of the jurors might believe that one of the acts constituting the offense had been committed, while other jurors might believe that other acts constituting the offense had been committed. The instruction reads: "The court instructs the jury that it is wholly immaterial as to what day or days the offense, or offenses, charged in the information was committed, if at all, provided you believe from the evidence that the offense, or offenses, were committed, and that the same was committed within one year prior to the filing of the information in this case." Appellant loses sight of the fact that each count charged a different offense under different subdivisions of section
[5] Defendant's motion to exclude witnesses was denied. This is a matter addressed to the sound discretion of the trial court. (People v. Garbutt,
[6] Appellant asserts that the trial court erred in certain rulings on the admission and rejection of evidence. Officer Remington testified that there was a card-room in the rear of defendant's premises which was fitted up with two card-tables. Defendant's motion to strike the word "card" as a conclusion of the witness was denied. The witness testified that he was a police officer and had visited the premises on several occasions. Any possible error in the admission of such evidence was cured by the defendant's testimony on direct examination that he was licensed to run a card-room with a freeze-out card game. Apparently the testimony of the police officer was a conclusion founded on fact.
[7] Exception is taken to the ruling of the court that it was not necessary to prove that races were actually run on the different dates charged in the information. The exception is not well taken. It was not necessary that it be actually established that the races upon which the bets were being taken were actually being run at the time. (People v. Sutherland,
[8] Officer Remington testified that he went into the defendant's premises for the purpose of securing evidence. Appellant urges that such testimony did not support the conviction of violating section
Finally, appellant excepts to the ruling of the court admitting the testimony of Officer Burk that races were being run at Tijuana during the month of February, 1926. In view of the fact that we have herein held that the prosecution was not required to prove that races were run on any particular day or at all, we deem it unnecessary to comment on this objection.
It is ordered that the judgment be affirmed.
Conrey, P.J., and Houser, J., concurred.