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: CALIFORNIA TEST CASE ADVANCED. Attorney for Racing Interests Makes Public Grounds on Which He Is Confident of Upsetting Law. San Francisco, Cal.. July 19. That a "double penalty" lias been provided in the Walker-Otis anti-betting law passed by the last session of the legislature, iu that the act reads that the punishment for a violation of the law may be either one years imprisonment In the state prison or one year in the comity jail, will be the contention of attorney Carroll Cook, representing Frank OSliea, when OSheas case is. heard bj the Appellate Court for the first district of California, on a petition for a writ of halieas corpus just filed. OSliea was arrested at the Ingleside Coursing Park July 7 for violating section 337A of the penal code. Cook, his attorney, applied to the Superior Court for a writ of habeas corpus, but Judge Van Nostnmd has refused to consider the petition on the ground previously taken by Presiding Judge Cabaniss, that as the question at issue may arise in any county of tlie state, it is best to test the law before an Appellate Court. Cook immediately applied to Judge Kerrigan of the Appellate Court for a writ and one was issued, returnable Monday. July 20. When OSheas case was pending in the Superior Court his bail was but 5, and in his petition he asked that that nominal figure lie maintained, but Judge Kerrigan raised the security to 00. OSheas petition alleged that he was arrested without warrant or comnlaint and that the complaint subsequently filed against him by policeman James McEntec does not allege any facts to constitute a public offense under the laws of the state. Section 337A of the penal code, under which OSliea is held, is alleged to be "absolutely void and of no effect and in direct conflict with the constitution of the state of California." When til" OSliea case came up before Judge Van Nostrand, Assistant District Attorney Harrison asked leave to argue the sufficiency of the complaint against OSliea before the application was referred to the Appellate Court. "We suggest." said rook, addressing tlie court, "that as the matter involves tlie validity of the section of the code under which the arrest was made, it ought to be decided by the Appellate Court, so that the decision will apply throughout the state." Cook also cited the case of one Adams, which Judge Cabaniss passed up to the Court of Appeals, although It never went to trial before the latter liody, because of the insufficiency of the indictment. Harrison wanted to argue the sufficiency of the present case against OShea. but Cook claimed the sufficiency was not in question. Judge Van Nostrand then granted the motion that it go to the Appellate Court. While leaving the Superior Court, Carroll Cook said: I am so sure that the law will bo declared Tin-constitutional that I dont mind Tcvealing niv hand. Of course, if the penalty is void the statute Itself is void. Our claim is that the penalty provided in this law is absolutely void. The legislature has 110 power to fix any such penalty as is fixed. Therefore the allegation of crime under the section must fall." Assistant District Attorney Harrison maintains that there are Supreme Court decisions stating that statutes providing for imprisonment in cither the state prison or the county jail are constitutional. Iu hundreds of sections the legislature lias provided for such alternative forms of punishment, Harrison I claims.
