People v. Bateman

WOOD (W. J.), J.

I concur in the judgment of affirmance. The Supreme Court denied applications for hearings in both People v. Davis, 47 Cal.App.2d 331 [ 117 P.2d 917 ] and People v. Pruitt, 55 Cal.App.2d 272 [ 130 P.2d 767 ]. The fact that the denial of a hearing in the Pruitt case was at a date later than the denial of a hearing in the Davis case does not establish the rule that any statements in the Davis opinion which may be contrary to the ruling in the Pruitt case must be deemed to have been overruled. In my opinion, however, there is no occasion to pass upon the effect upon the *590 Davis case of the later denial of a hearing in the Pruitt case, for there is no inconsistency in the rulings of the two cases. The crux of the opinion in the Davis case is found in the following notation from the opinion: “Prom the foregoing it will be noted that the officer was not asked as to the custom or manner in which alleged bookmakers operated, but was permitted to testify to the meaning of certain numerals and letters. This testimony, in the form here presented, should not have been admitted.” In the Pruitt case we held: “But because such officers may so testify does not authorize them to assume the role of omniscience and advise the jury as to the thought recorded by means of such symbols on betting markers found in the possession of the accused. Such testimony is speculation and is not admissible for any purpose.” The judgment of the lower court in the Davis case was reversed because of the error in the admission of testimony but in the Pruitt ease the judgment was affirmed because there had been no miscarriage of justice as that term is used in article VI, section 4% of the Constitution of California.

In the present case the police officer who was sworn as an expert witness based his testimony concerning the paper found in the possession of defendant upon the usage and custom of bookmakers in Los Angeles. He described the paper as a “betting marker” and stated that in common practice it was used by bookmakers to record wagers. Referring to certain letters and figures on the paper the prosecutor asked the witness, “Now in" common usage what do they indicate with respect to bookmaking activities?” An objection was made by defendant and the prosecutor explained: “My question doesn’t contemplate the meaning of these particular figures. I am asking him what in common parlance in bookmaking activities generally such a figure means. ’ ’ The question was permitted. The answer given by the witness clearly referred to the significance of the lists and figures in bookmaking activities generally. The court evidently was taking pains to avoid the error of the Davis case, for after some further testimony by the witness the record discloses the following question by the court: “You base your testimony not on this particular memoranda and the marks thereon, but on the customs and usages incident to the bookmaking fraternity in this community or vicinity, as to the manner in which they generally conduct their business ? ’ ’ The witness answered in *591 the affirmative. It is apparent from the foregoing that the court did not err in admitting the testimony of the officer. (People v. Hinkle, 64 Cal.App. 375 [ 221 P. 693 ].)