People v. Barnhart
153 P.2d 214, 1944 Cal. App. LEXIS 1234, 66 Cal. App. 2d 714 (1944)
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Rule of Law:
A conviction for occupying premises for bookmaking or recording bets can be sustained by circumstantial evidence, including the presence of bookmaking paraphernalia, a defendant's actions demonstrating guilt, and the receipt of betting calls on the premises. Furthermore, testimony about intercepted telephone calls received by officers in a bookmaking establishment is admissible evidence in state courts and does not violate the Federal Communications Act as to an accused who was not the sender of the communication.
Facts:
- On July 28, 1943, Deputy Sheriff Paul De Falla and another deputy went to the house at 1809 North Marengo Avenue, Pasadena, where Marjorie Barnhart and her husband resided.
- Deputy De Falla gained entry by telling Marjorie Barnhart, who answered the door, that he was there to check for "suspected gas leaks."
- As officers proceeded through the house, Marjorie Barnhart walked ahead of them to a smaller room containing bookmaking paraphernalia and two telephones.
- While the officers were present, Marjorie Barnhart removed one of the telephones from its cradle.
- Authorities found a yellow sheet (betting marker), a Metropolitan scratch sheet, and two telephone bills in the house.
- A handwriting expert later testified that most of the pencil writing on the betting marker and scratch sheet was made by Marjorie Barnhart.
- After the officers restored the telephones, a Pasadena Police Department clerk, Mrs. Sherman, answered several incoming calls, during which callers placed or attempted to place bets on horse races.
- Marjorie Barnhart denied bookmaking when questioned by Officer De Falla, stating she would rather not talk until she saw someone about it.
Procedural Posture:
- Marjorie Barnhart was charged by information with two counts: (1) keeping and occupying a house with paraphernalia for registering bets on horse races, and (2) recording and registering bets on horse racing, in violation of subdivisions 2 and 4, respectively, of section 337a of the Penal Code.
- The cause was submitted to the trial court upon the transcript of the preliminary examination.
- The trial court found Marjorie Barnhart guilty as charged on both counts.
- Marjorie Barnhart was sentenced to the county jail for thirty days as to each count, with sentences to run concurrently.
- Marjorie Barnhart appealed the judgment of conviction to the California District Court of Appeal, Second District, Division 1.
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Issue:
Does the evidence, including bookmaking paraphernalia, the defendant's handwriting on betting records, and intercepted telephone calls for placing bets, sufficiently support a conviction for occupying premises for bookmaking and recording bets, and does the admission of such telephone conversations violate the Federal Communications Act or due process?
Opinions:
Majority - York, P. J.
Yes, the evidence sufficiently supports Marjorie Barnhart's conviction for occupying premises for bookmaking and recording bets, and the admission of the telephone conversations does not violate the Federal Communications Act or due process. The court found that the combination of bookmaking paraphernalia, including betting markers and scratch sheets bearing Barnhart's handwriting, her action of removing telephone receivers to stop calls, and the subsequent receipt of betting calls by an officer, was inconsistent with innocence and consistent with guilt under Penal Code section 337a, subdivisions 2 and 4. The court affirmed that a violation of subdivision 2 (occupancy with paraphernalia) is complete when an accused occupies a place with the necessary equipment for recording bets, and the purpose can be inferred from surrounding circumstances. For subdivision 4 (recording bets), the presence of paraphernalia, lack of innocent explanation, and "guilty action" of attempting to stop calls, followed by receipt of bets, provided sufficient evidence. Relying on People v. Kelley, the court held that the Federal Communications Act's prohibition on divulgence of communications does not apply to testimony by police officers regarding calls received in a bookmaking establishment because the accused was not a party to the intercepted communications and therefore not a "sender" entitled to the statute's protection. Thus, Barnhart's due process claim based on the Act failed.
Concurring - Doran, J.
Yes, the judgment of conviction should be affirmed. However, Justice Doran disagreed with the majority's reasoning regarding the admissibility of the telephone conversations. He argued that the substance of these calls was pure hearsay and should not have been admitted as evidence to prove the actual offense of bookmaking. While evidence that a telephone was receiving calls might be admissible to show the instrument was functioning, the detailed content of the conversations goes beyond this purpose and impermissibly allows hearsay to prove the very crime charged. He criticized prior appellate court decisions for what he deemed "inaccurate reasoning" in allowing such evidence, asserting that the preservation of the hearsay rule is vital and should not be relaxed for expediency.
Analysis:
This case is significant for clarifying the evidentiary standards in bookmaking prosecutions under California Penal Code section 337a, reinforcing that circumstantial evidence can be sufficient for conviction. It particularly strengthens the precedent regarding the admissibility of intercepted telephone calls in state courts, establishing that the Federal Communications Act does not provide a shield for non-senders of communications against their use as evidence. This ruling provided important guidance for law enforcement in investigating and prosecuting illegal gambling operations, allowing them to use evidence derived from the operational aspect of bookmaking without fear of federal communication statute violations, as long as the accused was not the party whose communication was intercepted.
