Hinkle

By an information containing three counts defendant was charged, in the first count, with the crime of occupying a room with papers for the purpose of recording bets upon the result of a contest of speed between horses—the offense defined in subdivision 2 of section 337a of the Penal Code. In the second and third counts he was charged, respectively, with the offenses defined in subdivisions 3 and 4 of the section. The jury returned a verdict of guilty on all three of the counts. A new trial was granted as to counts two and three. The appeal is from the judgment of conviction on count one and from the order denying defendant a new trial on that count.

The facts, in brief, are as follows: Defendant was the proprietor of a cigar-store on the ground floor of a building fronting on a street in the city of San Diego. At the time mentioned in the information two San Diego police officers, while driving in an automobile along the street on which the store faced, saw two men inside defendant’s premises. These two persons were seen standing in front of the cigar counter engaged in conversation with defendant. One of the men was leaning over the counter. As the officers rode by they…