Fisk

This is an appeal from a judgment of “Guilty” and from an order denying defendant’s motion for a new trial.

Briefly, the facts are as follows: Appellant, together with three codefendants, was accused in an information filed by the ' district attorney of keeping a room with books and papers for the purpose of recording and registering bets upon the result of horse races, in violation of section 337a of the Penal Code.

At the trial in the superior court a jury was duly waived by the four defendants, including appellant, whereupon it was stipulated that the issue should be submitted upon the transcript of the evidence adduced at the preliminary examination.

The transcript of the evidence heard by the committing magistrate reveals that only two witnesses testified at the hearing, namely, police officer Flannery and police officer Kolhoff.

Officer Flannery testified, in substance, that he found Fisk, appellant’s codefendant, back of a counter at the end of a room about 30 feet long by 15 feet wide, within which room a number of people were congregated; that he saw some of the occupants in the room handing Fisk money; that he heard one of these occupants say to Fisk: “I want to bet…