*1 4419. May 3, No. In Bank. [Crim. 1943.] THE KELLEY, PEOPLE, Respondent, GEORGE
Appellant. *2 Appellant. for Morris Lavine General, Warren, Attorney Drucker, Deputy Earl and Lewis Attorney General, Respondent. for
EDMONDS, J.George Kelley complains convic- that his pur- upon charge occupying apartment tion for the pose bookmaking, contrary provisions to the Code, 337a, 2, was obtained subdivision Penal 605 of the of section use of evidence received violation 652, 19, (Act 1934, Federal Act of June c. 605.) Upon 1064, 1103, 605, 47 U.S.C.A. Stat. TJ.S.C. trial challenges denying him appeal, an order a new he rights grounds concerning questions raise constitutional scope statute. also the federal they officers, knocked According police to it was apartment of an two three times before on door that, them for Although appellant. he told opened reading, hours, sitting room several had been he dark. quite closed and room Venetian blinds were dis- telephone wires were They immediately noticed that the they before, had heard connected, a few but minutes wires, Upon reconnecting'the ring. instrument bell of the re- during hours the two rang at least 50 times bell mained there. answered he testified that when One of the officers Jimmy?’ ‘Hello, And I said ‘Yes.’ voice
telephone “The said ” on 326.’ to win Walter, give me three ‘This He said for Marge,’ and asked said ‘This is Upon the next call “it Mix, Even on Marge, place to George. ‘This is one said ” place one on Vain.’ Lady next time the caller “ IMich, said ‘This want 301 to combination bet on ’ ” 344, Again one rang, across. the officer testified. the bell “A on Dove, George, voice said I two across ‘This is want a parlay II,’ next Downy on Billow to Mt. Vernon and the a lady’s Helen, following time give voice ‘This is me said 633, place, parlayed bets: show, insured; one one to 671, place; parlayed one to to place; one ” place place.’ insured; parlayed one two to According witness, number of a record of a had same received him while character he was in the apartment, seated about eight telephone. feet from the also stated told that the first them Jimmy.
his name However, repeated when tele- phone calling conversation in which asked Jimmy, Kelley then George. his He said name was had key to apartment. drawer near the a desk in room, betting another the officers found blank markers, recording *3 of a type common used for the name, number, horse, number of and the amount wager. they After the recon- apartment, the entered and, dial, nected the radio changing without the selection the heard results of races horse broadcast. explain To the one telephone, received the over officers, who said which he knows the methods bookmaking conducted, compared num- testified that he the bers, symbols given by names on callers with racing certain bulletins. He found that each horse men- racing tioned particular day them was on “Keene- that at “Bay Meadows,” land” or tracks in the are race United States. asserts that the evidence is insufficient support the verdict. he specifically, More contends that intercepted telephone messages
the admission evidence of the consent section without of the sender was in violation of 605 of the federal statute and of Fourteenth Amendment States; Constitution of the that United evidence this of was unlawful search and seizure violation obtained I, 19, article Constitution, of and the California Fourteenth Amendment of the Constitution the United States; and that was erroneously other evidence received against him.
172 general
Answering contentions, attorney takes these supra, Act, that the Federal position concerning of federal officers federal rule evidence prohibit admission a state court courts and does not telephone by over state officers. He obtained evidence intercepted telephone the admission of also maintains that courts violation of California is conversations Constitution, nor of that the United States. Accord- its says amply justifies ingly, the evidence he conviction of urges judgment, support appellant. corpus necessary prove prosecution was beyond before evidence delicti a reasonable doubt being all admissions, prima showing facie required.
Concerning relating points rulings upon evidence, People insist the officer did state signs shown in the meaning symbols which are explain the bookmaking except to prove evidence offered to and to betting parlance, “insured” in the word that if identify two race And is said court tracks. to use sheets which permitting erred scratch the basis of their procured had elsewhere as ar- day relating run on races may rested, harmless, error since the conviction such without that evidence. stand
Although the federal
forbid the introduction of
courts
illegally
timely
evidence
from the accused
his
obtained
(Nardone
States, 308
v. United
U.S.
motion for
exclusion
States,
Byars
266,
;
84
v. United
338
S.Ct.
L.Ed. 307]
[60
;
Importing
Go-Bart
L.Ed.
273 U.S.
S.Ct.
[47
520]
States,
L.Ed.
S.Ct.
Co. v. United
U.S.
[51
261, 65
374];
States,
174 protection divulgence to of the act titled of telephone messages question United U.S. S.Ct. Nardone v. [58 intro- 314], government’s the court held that the L.Ed. recordings intercepted of inter- transcripts duction and of case messages state as evidence in trial a criminal of contrary to the divulgence messages a of such constituted States, 308 express terms of In Weiss United the statute. 298], telephone U. 84 L.Ed. S. S.Ct. intrastate [60 their intercepted by agents, federal communications were repeated to of defendants. As contents were certain gov- and testified result these defendants confessed prohibits ernment. The court the statute decided messages. divulgence as interstate intrastate well of concerning the further held that the witnesses’ them, messages not an authorization contents of the was messages, contemplation as the within the senders of the the statute. 266, 84 States, 308 S.Ct.
Nardone United same statute was 307], in which L.Ed. is another case conviction, court Reversing judgment considered. intercep- testimony induced as a result of unlawful held that messages inadmissible, and was tion and use objec- obtained, over the the introduction the evidence so senders, defendants, constituted who were tions of the Goldstein statute. purpose policy violation 1312], 86 L.Ed. States, 316 U.S. v. United to that in the second presented upon a record similar parties case, but the defendants were Nardone co-conspirators to become two communications used induce decision, question for said prosecution witnesses. for violation court, it the sanction was whether should extend to one Act so as to make available objection intercepted communication party trial, courtroom, prior that such use outside No be admissible. which would otherwise induced evidence observed, im- far, gone applying so court has ever Amendment of the Fourth plied sanction for violation contrary, . . the federal and, on the “. Constitution federal unanimity, have denied cases, and with courts numerous search anof unconstitutional standing one not the victim of that in evidence object to the introduction and seizure held, broader For reason was was seized.” imposed sanction should be for a violation of the Communica- divulgence Act, tions supra. And as a may lawfully with the consent made Therefore, sender, protected. none to be but intended using although prosecuting violated the statute *6 testify, the messages the to them parties to induce to the to inter- testimony against party was one not the admissible a cepted communication. Court, Supreme
Under these decisions of States the United although messages of the intrastate come terms within the statute, in “sender” appellant is a present the the case not protection. True, entitled to its in Goldstein v. United supra, the Polakoff, court States 112 referred to United v. F.2d 888, engaging where held each of persons was that the in a telephone meaning sender conversation is a within the of “Every talk,” Judge the telephone Act. Learned said Hand, any party “like other talk each is antiphonal; is alternately deny sig- all sender and receiver and it would nificance privilege to that hold created originated because one power the call had the he to surrender privilege. satisfactorily other’s ... impossible to dis- is sect a conversation, mutual; both must privilege is the consent to interception the talk.” part of of the But reasoning this applicable testimony is not the who related what was when said to them answered telephone in apartment Kelley where arrested. There was interchange was no in re- conversation which one ferred to just said; what indeed, had there was answer so far the appellant as concerned. Kelley telephone messages asserts that rele- would be only vant if assuming for him. that intended Yet persons called on telephone who intended their messages Kelley, party in reach he fact since was conversations, he position is in addressee the same as the telegram. Judge case, stated, in Hand, And Polakoff being beyond as dispute, of a reasonable that the sender telegram may interception though consent that “even prejudice the addressee.” Therefore the could given by “sender” even within the broad definitions Judge communication, Hand. And “sender” of Supreme pro- Court, said United States entitled tection of statute. points presented
Other concerning the admission include his assertion of evidence that the court explain allowing police in officer to
erred one the term “insured”
testifying Bay tracks that Meadows and Keeneland were race day operating appellant’s States on the the United People regard supported by His contention in this arrest. Davis, Cal.App.2d There, P.2d [117 917]. that, action, a witness for a considerable present testified investigated time, bookmaking he had period establishments bookmaking familiar in which com with the manner had community; also, he monly was conducted bookmaking interpretation concerning testified court symbols assuming signs and on numerous occasions. But erroneous, Kelley the admission of the evidence re prejudicial. Since conversations error was reconnecting telephone were by the after ceived occupied prove prem properly admissible the use ; (People Joffe, Cal.App.2d P.2d ises 901] 564]), Reifenstuhl, Cal.App.2d P.2d People v. officer, excluding the terms which messages received jury. amply support explained, the verdict racing of the officer bulletins *7 telephone conversations named horses mentioned Kelley’s day apartment run entrants races on the argues. Being erroneously admitted, entered legally no from it concern- hearsay, inference could be drawn harmless, again ing day. run on But the error races (People run. it is immaterial the races were since whether Carroll, 693]; People Cal.App. 375 P. Hinkle, v. 885].) corpus delicti of P. The Cal.App. 684 [202 charged occu- proof established crime bookmaking paraphernalia purpose for pied a room with (Pen. registering or horse races. recording bets of (2).) See. 337a Code order is affirmed.
The J., Curtis, J., J., con- Gibson, J., Shenk, Traynor, and C. curred.
CARTER, majority opinion I dissent. misconstrues J. Act, the Federal Communications and provisions of interpreta- support relies in of upon which it authorities clearly of said act hold that evidence of character tion of inadmissible violation because involved here obtained said act. provisions occupying defendant was an apartment convicted purpose for bookmaking upon evidence received (47 violation the Federal Communications Act. U.S.C.A. 605.) apartment were occupied Police officers admitted to the telephone apartment rang many defendant. The times while the there. admitted Evidence was showing eight while defendant was seated about feet telephone from the on answered the many rang. when occasions One one of such occasions voice phone inquired on the Jimmy, if was replied, officer “Yes.” On other occasions the communicants wagers stated they desired make.
The Federal Communications Act provides: “. . person . and no authorized sender intercept any divulge shall communication publish or existence, contents, substance, purport, effect, or intercepted such person; person communication to any and no not being entitled shall thereto receive or assist in any foreign interstate or communication or wire radio any use the same or therein contained his own information or thereto; another not entitled benefit for the'benefit of having received such communication or having acquainted contents, become substance, with pur- port, effect, meaning any or thereof, same or part know- ing that obtained, such information was so or divulge shall publish existence, contents, substance, purport, effect, or meaning of part thereof, the same or or use the same any information therein contained for his own benefit or for the benefit another thereto; entitled ...” (Emphasis (47 added.) 605.) U.S.C.A.
At the outset it should be observed that the rule with admissibility reference to the of evidence in viola- obtained tion of prohibition the constitutional against unlawful searches and seizures considered in People Gonzales, Cal.2d 44], P.2d is not here involved. That guar- constitutional does not make give antee it a crime to *8 testimony obtained in violation thereof. The chief -basis such not evidence being prevent admissible a violation of that constitu- guarantee; tional if such evidence is en- admissible it would courage However, violations. under the Federal Communica- tions it is made a punishable Act and divulge crime as such divulged or suffer to be the information obtained in violation Section 501 act. reads: “Any person knowingly who or willfully and does causes matter, any thing, chapter or act, suffers to be done in this or willfully and prohibited unlawful, or declared or who to be thing knowingly any act, matter, or or in fails to do omits knowingly chapter done, willfully required this to be and or upon convic- failure, shall, causes or suffers such omission or pen- no thereof, punished offense, tion be for for which such herein, fine alty (other forfeiture) than a a provided $10,000 a term by imprisonment than more for (47 The 501.) years, not more than or both.” U.S.C.A. two com- giving of as of a nature and substance evidence divulgence contrary munication obtained act would be pres- thereof actual and would be crime committed trial, the court a situation that should ence of at the any tolerated under circumstances. vio- question is, therefore,
The whether section 605 was holding that majority opinion, instant lated ease. The (con- violation, propositions no there was is based two is, that that given); sideration to which will be hereinafter sender that only protection act and message. But even interception there no accepted if still remains propositions those are there quo- foregoing separate independent second and clause receipt declares unlawful tation from section person use not entitled thereto of communication. en- .“. Repeating, reads: . clause . . . . communication . titled thereto shall receive . entitled of another not the same . . . for the benefit use , recipient thereto; Hence, . .” communi- intended receiving his persons protected cation is unauthorized message. immaterial whether the sender It thus becomes appearing clause protected preceding quoted intercep- as there has been heretofore or whether clause, clause because the tion within recipient unequivocally protects question here if interception required, term be message is not message listening before reaches to mean limited receiving telephone majority mouthpiece of held in opinion. wording clearly applies now of the clause discussed instant case. The officersreceived the facts so under the They entitled to do telephone. were not over Act, intended for message being Federal to receive it. not authorize them did defendant. Defendant testified at message was used officers when *9 namely, the They another, the trial. used it for the benefit Therefore, giving to it. State. The State was not entitled testimony of the at the trial a crime. constituted apparently contrary foregoing The statement views to the merely in Sablowsky States, 101 F.2d was made v. United in passing. question It was there said that the clause “obviously again employees agen- refers communication necessarily possibility cies.” It does not exclude the persons may be included. apply It has been held that all the clauses interstate com- communications intrastate as well as (Weiss States, merce v. United S.Ct. 298]); therefore, applies L.Ed. discussed clause here States, in the instant case. The case of Goldstein United re- 1312], expressly U.S. 114 L.Ed. question scope serves for future determination of the the clause above discussed.
If it be assumed that the clause heretofore discussed applicable case, appearing the instant the first clause above-quoted portion clearly section 605 avail- provided able. It person is there that no not authorized the sender shall divulge telephonic communication. Supreme United States has stated Goldstein Court United supra, designed only the clause is protection sender, but that is dictum inas- statement much inas that case defendant was neither the sender nor the recipient message; party he was not a to it. question court stated the page involved at 1004: question “The now to be decided shall is whether we extend the sanction for violation the Communications Act so as to make available to one the inter- party not a cepted objection communication outside the use courtroom, which, prior trial, to the evidence induced except use, (Emphasis added.) for that would be admissible.” inAnd conclusion at the page: same though opinion
“We are of made that even use of the communications to induce prosecuting parties testify to them held the statute, a violation procured not render in-
this would so message. This party admissible not a trial is the settled common-law rule. was no use at the There communications, information or of use is a they contained as such. such as occurred here If act, imposes statute itself violation of the sanction.” added.) (Emphasis at the case bar the was a defendant True, conversation and party to the invokes statute. defendant but telephone, officers rather than answered the communication was intended for him and he was presence pre- thereto. The of the officers party entitled message. him from If it in- vented were not *10 occupant him as apartment, the the evi- tended of no value or aid on would be the issue of defendant’s dence guilt. Furthermore, approval Goldstein with case cites Polakoff, F.2d where it States v. is said: United ‘sender,’ in word, apt section 605 less for a tele- “The is telegram, applied can than for as to which there phone talk meaning. telegram, If a man sends a he no doubt of its be interception though prejudice its may consent to even that addressee, conceivably might; it as if addressee but by give telegram, he' alone can a valid consent to answers privilege sender, answer. He like the interception of the has consent, from surrender which is as immune the sender’s message from privilege as the first as the sender’s to. by his far there can be no reasonable consent. So surrender telephone any talk, dispute. Every talk, antiph- like is onal; alternately' party each is sender and receiver and it significance deny privilege created would all party originated because one had hold that the call he power privilege. surrender the other’s cannot be There party up; this as to answers of the called least doubt of argued might it each pedantically and while indeed be that interception of at least party power to consent had said, extremely unreal, would for in much as he that so interchange may, does, imply each answer and often part responds. that which it It is im- reference some possible satisfactorily conversation, to dissect a so mutual; interception is both must consent to the privilege added.) (Emphasis talk.” it is true any part of the While were no defendant case that answers in the instant there calls, telephone he was inasmuch as the answered relevancy recipient and the calls would have the intended no occupant for him as an unless were intended apartment. equally message clear that intercepted by is argue intercep- is no
the officers. It is fantastic to there has tele- tion where the communication reached the completed it de- It had until reached phone. course fendant, person for whom it was intended. If the officers calls, had not answered presumably defendant have would done may so. It not be said with realism tapping wire inch an before reaches the receiver 1/100 interception, actually listening but to the conversation on the receiver recipient without the consent of the intended language is not. The Gruber, United States v. 123 F.2d 307, 309, pertinent: “A contemplated by parties hearer not the conver- sation was introduced without their consent. It can make divulging difference that did not know con- message. tents of the Whether engaged he was never communication, listening or could not long understand the so as he caused it to be party transmitted to third without sender, intercepted divulged consent of he com- munication surely though and violated the statute as a telegram, had abstracted a Western Union Office from delivered party.” added.) some third (Emphasis In the instant case officers abstracted the communication from divulged the receiver and init court.
The view the communication the instant *11 case borne out Goldman United Although 1322], 86 L.Ed. it was there held that act the did not to an eavesdropper extend listening.to sending message, the one court, the in the dis- cussing meaning the interception, term page the at said 995:
“It ordinarily does not obtaining connote the what before, to moment, be sent or at possession it leaves the the after, proposed sender, moment, the or at comes possession into the listening receiver. The intended next room to the words of as into the Shulman he talked telephone receiver interception was no more the a wire communication, act, within than of the would overhearing sitting have been the of the conversation one added.) the same (Emphasis message room.” Here defendant, come into possession had not intended intercepted by receiver. the officers. The act instrumentality, an officers was interference with receiver, in message using it to receive a to which were not In Goldman there was entitled. case instrumentality, telephone re- such interference with the ceiver, message using to receive a to which no such inter- not entitled. In Goldman case there was per- instrumentality, eavesdropping and the ference with the not a violation Federal petrated therein did constitute Act. policy legislative here concerned with the We are the Federal Communica- prompted the enactment of to applied only interpretation as Act, but with tions on my opinion, placed In construction facts of case. this majority opinion is provisions of the act quoted unambiguous clearly contrary plain and language interpreted by as decisions contained act object Supreme but also Court of the United thereby. a sufficient accomplished to It is not purpose and persons say protect answer act was not intended to against prosecution engaged pursuits, in unlawful who are Congress provided in those cases exception could have if disposed it had been to do so. guaran- purpose adopting
The obvious the statute protection persons sending tee communica- regardless meddlers, snoopers inquisitors, tions com- seeking intercept purpose motive or of those say To the act does munications intended another. apply to situation at the factual case bar place a ignore language in strained plain the act and construction statute as a whole. my opinion, relating com- telephonic the evidence inadmissible, clearly judgment
munications was and the should therefore be reversed.
Peters, pro tern., concurred. J. rehearing Appellant’s for a was denied June petition voted rehearing. for a Carter, 1943. J., Schauer, J.,