Opinion
Hearing Granted Nov. 8, 1943.
Appeal from Superior Court, Los Angeles County; Arthur Crum, Judge.
Herbert Joseph Newman was convicted of recording a bet, and he appeals.
Affirmed.
COUNSEL
Robert E. Ford, of Hollywood, for appellant.
Robert W. Kenny, Atty. Gen., and Eugene M. Elson, Deputy Atty. Gen., for respondent.
Robert W. Kenny, Atty. Gen., and Eugene M. Elson, Dep. Atty. Gen., for plaintiff and respondent.
Robert E. Ford, of Hollywood, for defendant and appellant.
OPINION
McCOMB, Justice.
From a judgment of guilty of violating section 337a, subdivision 4, of the Penal Code after trial before the court without a jury, defendant appeals.
There is also an appeal from the order denying his motion for a new trial.
The evidence being viewed in the light most favorable to the prosecution, the essential facts are:
On February 17, 1943, defendant was arrested in Room 17 of a hotel building in Los Angeles. At the time there were two other persons in the room with defendant. When defendant was arrested he was searched and a National Scratch Sheet dated February 17, 1943, was found under defendant’s coat near his shoulder. In the same room was also found a Metropolitan Scratch Sheet dated February 17, 1943. In Room 18, across the hall from Room 17, the officer found several pieces of paper, apparently torn from a tablet or notebook, stuck to the underside of the top of a dresser in the room. When defendant was booked at the police station, he turned in a notebook with the word "Memorandum" on it. This notebook contained entries in his handwriting, such as, "W.X.X. 4720", and the slips of paper known as betting markers found in Room 18 also contained entries in defendant’s handwriting. The notebook which defendant possessed was commonly known by book makers in Los Angeles County as an "Owe Sheet." It was the custom of book makers in Los Angeles County to record in code and by means of signs, symbols and letters their betting operations.
Defendant did not testify in the case.
Defendant relies for reversal of the judgment on this proposition:
There was not any substantial evidence to sustain the trial court’s implied finding that defendant had recorded an actual bet contrary to the provisions of Section 337a, subdivision 4, of the Penal Code.
This proposition is untenable and is governed by the following pertinent rules of law:
(1) An appellate court will not attempt to determine the weight of the evidence, but will decide whether on the face of the evidence it can be held that sufficient facts could have been found by the trier of fact to warrant an inference of guilt, and before the finding of the trier of fact will be set aside on appeal on the ground of insufficiency of the evidence to sustain it, it must be made clearly to appear that upon no hypothesis whatever is there substantial evidence to support the conclusion reached by the trier of fact. (People v. Abrams, 58 Cal.App.2d 157, 136 P.2d 46; People v. Pianezzi, 42 Cal.App.2d 270, 277, 108 P.2d 685; see also People v. Newland, 15 Cal.2d 678, 681, 104 P.2d 778.)
(2) In a criminal trial where defendant does not by his own testimony or otherwise attempt to contradict, explain or deny evidence of incriminating facts which has been received against him the trier of fact is entitled to consider such circumstance in determining his guilt. (Art. I, sec. 13, Constitution of the State of Calif.; People v. Wiezel, 39 Cal.App.2d 657, 663 et seq., 104 P.2d 70, and cases cited in the footnote.)
November 6, 1934, by an initiative measure, the people of the State of California amended article I, section 13, of the state Constitution to read in part as follows: "* * * but in any criminal case, whether the defendant testifies or not, his failure to explain or to deny by his testimony any evidence or facts in the case against him may be commented upon by the court and by counsel, and may be considered by the court or the jury."
Applying the foregoing rules to the facts in the instant case, it is evident that there was substantial evidence to sustain the trial court’s implied finding that defendant had recorded a bet contrary to the provisions of section 337a, subdivision 4, of the Penal Code.
The evidence discloses that when defendant was arrested, he had under his coat near his shoulder a National Scratch Sheet; that stuck to the under-side of a dresser in an adjoining room were pieces of paper upon which were notes in the handwriting of defendant (such pieces of paper were known as betting markers); that defendant had a notebook in his possession commonly known as an "Owe Sheet" in which were also entries in his handwriting; and that it was the custom of book makers in Los Angeles County to record in code and by means of symbols their betting operations.
These facts clearly constituted incriminating evidence and when taken in connection with the circumstance that defendant did not testify in his own behalf or otherwise attempt to contradict, explain or deny, such incriminating facts, constituted substantial evidence to sustain the trial court’s implied finding.
For the foregoing reasons, the judgment and order are and each is affirmed.
MOORE, P. J., and W. J. WOOD, J., concur.
In a number of cases construing the foregoing amendment, the appellate courts have in varying phraseology, emphasized what seems to be the purpose of the amendment, to wit, the failure of a defendant to deny or explain incriminating evidence presented against him shall constitute a substantial factor in determining his guilt. The amendment places no limitation upon the extent to which such conduct of the accused shall be considered. In the absence of such restriction, no valid reason appears why one who remains silent in the presence of incriminatory evidence shall not be adjudged guilty if the corpus delicti has been proven. (See People v. Perry, (1939), 14 Cal.2d 387, 395, 94 P.2d 559, 124 A.L.R. 1123; People v. Waller, (1939) 14 Cal.2d 693, 702, 96 P.2d 344; People v. Murray, (1940), 42 Cal.App.2d 209, 214, 108 P.2d 748; People v. King, (1940), 40 Cal.App.2d 137, 141, 104 P.2d 521; People v. Dozier, (1939), 35 Cal.App.2d 49, 59, 94 P.2d 598; and People v. Dukes, (1936), 16 Cal.App.2d 105, 109, 60 P.2d 197.)