¶1—I dissent.The defendant was apprehended in the act of delivering owe sheets for a bookmaker. He chose not to testify and explain the circumstances which placed him in such a predicament. His lawyer argues, in effect, that it was not proved that defendant knew what he was delivering. In my opinion there were several facts which together formed a basis for an inference that defendant knew he was aiding a bookmaker. He was the driver of the automobile and the only person therein. On the front seat of the automobile and to his right there was a bag containing seven sealed envelopes in each of which there were papers commonly used by bookmakers. In the locked trunk of the automobile there were several cards (not in envelopes) which were commonly used by bookmakers—one of the cards was dated January 21, 1950 (the date of the arrest). At the time of his arrest the defendant told the officers that he would put the automobile on a lot and “leave it for his wife to pick up.” The defendant admitted that in delivering the envelopes he was “working for” “somebody” by the name of “Army.” His answers to questions by the officers as to the name of the person he was “working for” were evasive. He told them he “picked these things up.” He refused to tell where “he picked them up.” No address was.on any of the four enve*772lopes he delivered or on any of the seven envelopes in the bag. The only writing on each of the envelopes (except one on which was written “$149.70”) was one initial, or two initials, or a one-word name which was in common use. On one envelope there was the letter “ H, ” and on another there were the letters “B.L.” On others there were the names, “Joe,” “Al,” “Johnny,” “Herb,” “Whitie,” “Taxi,” “Cook,” and ‘ ‘ Venice. ” Such common names constituted the only direction on the envelopes for the guidance of defendant in making the deliveries of “these things” in a city of approximately two million persons. At the time of the arrest, defendant said that “he didn’t quite know what he was doing, that his father-in-law had just passed away” and “he was quite upset.” (Emphasis added.)
¶2In my opinion the evidence shows that defendant exercised such dominion over the automobile (as the driver, sole occupant, and director of the disposition of it after the arrest) that it could reasonably be inferred (1) that he had access to the bookmaking papers in the locked trunk (which papers were not in envelopes), and (2) that he knowingly was in possession of the bookmaking card therein which was dated January 21, 1950 (the date of the arrest), and knowingly was in possession of the several other bookmaking cards therein which bore prior dates. In my opinion the presence of such bookmaking papers in the trunk, the wholly inadequate direction on the envelopes for their delivery, defendant’s actual delivery of four such envelopes containing owe sheets, the presence of several other such envelopes in the front seat of the automobile, and the bizarre features of his employment as related by him, indicate that he knew what he was delivering. In my opinion, regardless of defendant’s failure to testify, the bookmaking here involved “was connected up” with defendant. He was in actual and exclusive possession of many bookmaking papers, and he was caught in the overt act of delivering several of them. In my opinion the trial judge could reasonably have inferred that defendant knew that the envelopes contained bookmaking papers and that in delivering them he was aiding in bookmaking.
¶3The prosecution having proved facts from which such an inference of knowledge on the part of defendant could be drawn, the failure of defendant to testify was of significance. The facts regarding his alleged employment and his alleged lack of knowledge of the contents of the envelopes were, of course, within his knowledge. It was within his power to *773explain the circumstances which formed the basis for an inference that he knew he was aiding in bookmaking, if those circumstances could be explained. His failure to testify affords additional support for the judgment of conviction. In the ease of People v. Steccone, 36 Cal.2d 234 [223 P.2d 17], the defendants were John Steccone and Peter Makris, and the evidence showed, among other things, that persons by the names of “Pete" and “John" were involved in bookmaking. The defendants therein, who did not testify, argued that the names were common names and the evidence did not warrant an inference that the defendants were the persons so involved. The court said at page 239: “But if ‘Pete’ did not mean Makris and ‘John’ did not mean Steccone, then appellants could and should have denied it. These were facts within their knowledge and power to dispute, but they failed to testify. So it was said in like circumstances in People v. Adamson, 27 Cal.2d 478, at pages 490-491 [165 P.2d 3] : ‘. . . if it appears from the evidence that defendant could reasonably be expected to explain or deny evidence presented against him, the jury may consider his failure to do so 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.’ ” It was also said in that case at page 239 that a defendant’s failure to testify as to facts within his knowledge cannot be used to supply a failure of proof by the prosecution, “but such is not the case here, as the record discloses numerous corroborative facts evidencing appellants’ collaboration in bookmaking activities at their respective establishments." In People v. Ross, ante, p. 116 [223 P.2d 85], which involved bookmaking, the court said at page 121: “Defendant’s failure to take the stand is significant. ’ ’ It was also said therein at page 122, in quoting from another case: “ ‘Such failure by him to explain or deny under oath the evidence woven about him was itself a potent fact for consideration by the trial judge and affords additional support for the judgment. ’ ’ ’
¶4In People v. Zoffel, 35 Cal.App.2d 215 [95 P.2d 160], wherein it was said that a defendant’s failure to testify cannot be used to supply a failure of proof by the prosecution, the court also stated that under the evidence therein certain articles, referred to in the evidence, were “not connected up to ’ ’ the defendant. As hereinabove stated, in my opinion the envelopes involved in the bookmaking in the present ease were “connected up" with the defendant.
¶5*774In my opinion, the fact that defendant was found not guilty under count one, wherein he was charged with holding and forwarding papers which referred to money bet on a horse race, does not mean necessarily that the trial judge found that defendant did not know what was in the envelopes. It might be that the acquittal on count one was based upon a misinterpretation as to the meaning and scope of said section 337a, subdivision 3, under which defendant was prosecuted on count one. It is to be noted that the attorney for' defendant, upon voir dire examination of an officer, established that at the time of the arrest at 7 p. m. on January 21,1950, the last horse race at any place in the United States on said day had been run. It is also to be noted that said attorney then asserted that the defendant was “charged with a Subdivision 3, if your Honor please, which is for the purpose of being pledged, bet or wagered, the forwarding of money bets and so forth,” and the attorney then argued that at 7 p. m. it would be impossible for the papers to be on account of the result of any race. If the trial judge interpreted said subdivision 3 in accordance with that argument of defendant’s attorney and based the acquittal on count one upon such an interpretation, the acquittal on count one would not mean that the judge found that defendant did not know what was in the envelopes.
¶6In my opinion the judgment of conviction should be affirmed. -
¶7Respondent’s petition for a hearing by the Supreme Court was denied December 26, 1950. Gibson, C. J., Shenk, J., and Spence, J., voted for a hearing.