Appellant argues that the cryptic language of the conversation overheard by Officer May was meaningless without explanation in the form of expert testimony. We think this argument is based upon an unrealistic premise. In recent years, the advertising and reporting of horse racing events and the discussions of the terms and results of wagering thereon, have become so extensive in every modern medium of communication that it would be a rare individual of adult years who had not by now acquired, either voluntarily or involuntarily, a fairly adequate understanding of the essential elements of these wagering contracts and of the terms in which they are made. Even if he did not understand the precise terms of the wagering contract as expressed in the language of the testimony, the average individual would at least understand that, in the context of their utterance, the words ‘Give me 2 and 2 on Master Boing in the seventh’ constituted an offer to wager on a horse race; that the response, ‘Okay’ was an acceptance of the offer, and that the entry on the scratch sheet was intended to be a record of the wager. Such understanding, we are sure, is well within the scope of common knowledge in this jurisdiction.
The failure of the appellant to testify or to offer any evidence in his own behalf could have been considered by the trial court ‘as tending to indicate the truth of such evidence, and as indicating that among the inferences that may reasonably be drawn therefrom, those unfavorable to the defendant are the more probable.’
Appellant’s contention that the trial court lacked jurisdiction is equally untenable. Although not clearly articulated, the essence of the argument seems to be this: that Section 19662 of the Business and Professions Code, being a later and special enactment, superseded the provisions of Penal Code with respect to cases in which the wagering involved horse racing in California, and that said Penal Code section remains applicable only to wagering on horse races at meetings outside the state. Any person wagering upon the results of a horse race, except in the pari-mutuel or mutual method of wagering, when the wagering is conducted by a licensee and upon the grounds or inclosure of the licensee, shall be punished as provided in the Penal Code.
The foregoing statute was enacted in 1941 and derives from the Horse Racing Act. The Horse Racing Act from which were derived the statutory enactments relied upon by appellant ‘merely provided one exception under which one form of betting on horse races was permissible in California. It is clear from a study of the act of 1933, as amended, that the Legislature not only did not intend to repeal the general law prohibiting general betting and registering of bets on horse races, but intended that the law remain in force subject to one exception, namely, that pari-mutuel betting be permitted if conducted in the manner and under the conditions specified in the act.’
The judgment, and the order denying motion for a new trial are, and each is affirmed.
Attorney Blows Opportunity to Cross-Examine Bush
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