People v. Barhart, 153 P.2d 214 (1944)
Author: Anonymous

Relevant Facts: The Df was convicted of keeping a house for the purpose of taking bets on horse races. The People offered the testimony of a police officer who answered the telephone inside the Df’s house and the conversed with anonymous callers.

Legal Issue(s): Whether the evidence was sufficient to support the verdict?

Court’s Holding: Yes.

Procedure: Jury verdict against the Df; Affirmed.

Law or Rule(s):

Court Rationale: (THE MAJORITY DID NOT COMMENT ON HEARSAY. . . ONLY THE MINORITY)

The evidence of the telephone conversations was pure hearsay.  Evidence of the fact that a conversation was received would be admissible for the purpose of proving that the telephone was in order and functioning, but for no other purpose.  People v. Joffe; People v. Reifenstuhl, referring to such evidence stated “. . .it was not subject to the hearsay rule. [because] The conversation was not admitted for the purpose of proving its own contents . . .but to prove the use to which the telephone was subjected by the public and to demonstrate the reaction of the Df at the time.  The use of the room occupied by the Df was in issue and the nature of the telephone call was a circumstance to establish the truth.  The uses to which a telephone is put reveal more truthfully the character of the establishment that houses the instrument than do the words of description attached to the listing.”

Plaintiff’s Argument: To conclude that the place was a betting establishment from the content fo the telephone calls required the fact finder to rely on the untested perception, memory, and sincerity of these unidentified callers.

Defendant’s Argument: The conversations were “verbal parts of acts” that were nonhearsay b/c the words uttered were explanatory words which accompanied and gave character to the transactions.

NOTE: The relevance of the calls depends on the caller’s perception and memory of the nature or character of the establishment contacted and the sincerity with which each call was made, none of which could be tested b/c only the one who answered is on the witness stand.