The San Francisco call. [volume] (San Francisco [Calif.]) 1895-1913, 1909-08-24
ASK RULING ON
LAW THAT PUT
END TO RACING
Attorneys for COursing Park
Proprietor Present Two Points
to Court of Appeal
Arguments Based on Cruel or
Unusual Punishment, County
Jail or State Prison

Docs the anti-racetrack pOoIroom
law give Judges power to impose cruel
Or unusual punishment upon offenders.
Which the constitution fOrbidss
Fad the legislature the right TO
name penalties that range from 80 days
10 ono year, and from the comparative
reEPectsbiIity of the county iaiI to the
deep disgrace of the state prison..
These two points. made before the
appellate court yesterday by opposing
counsel are those upon which the law
VIII stand or fall
THE TEST CASE
The state was represented by Dep
uty Attorney General Raymond Ben
jamin and Assistant District Attorney
Robert Harrison. The case OF Frank
O'shea was upheld by Carroll Cook
and Henry Ach. O'Shea is the owner
4 the Ingleside coursing track, which
likewise falls under the law that pre-
vents betting on the result OF speed
contests. To bring the validity of the
law TO a test O'Shea held a hare and
hound match, for which he was ar
rested and released onN bail. He ap-
rigan for release on habeas corpus. Be
fore yesterdays argument began Cook
stipulated that if the law is invalid
O'Shea should be freed. and If valid he
should be punished. There was no
dispute as TO the facts. but very de-
termined dispute as to the constitu-
tionality OF the measure.
SAYS LAW Is OBSCURE
Cook spoke TO this effect. The new
law is so printed lines in length. pune
uuated only with commas and semi
colons. and is obscure from the start.
For instance. the punishment affects
only results" and could do nothing
TO a man who bet on one heat. The
Saw further tried 10 put under the
jurisdiction OF the courts what is prop
erly subject to police regulation, i'm
posing nonjudicial powers on the court.
The constitution provides against
cruel and unusual punishments- The
law names punishments that are in
comparison cruel and unusual II does
not state whether the violation Of the
law is misdemeanor or a felony. yet
gives the judge power 10 determine
this in his sentence. He may give the
offender only 80 days in jail. or again.
he may make IL q year in San Quentin,
from which the offender would emerge
disfranchised. curtsiled of his rights as
q citizen and scorned by his fellows.
Within would determine the penalty.
At this point Judge Cooper said that
Ihere was z wide latitude in many
laws in which the severity Of the SEN
tence IS determined by the offenders
past record. Benjamin then remarked
that assault with deadly weapon al
lows for a similar range. Cooks re-
ply was 2 denial that the two were
parallel The jury does not name the
degree Of the crime under the race
track law, but leaves that 10 the opin-
ion OF the judge. He then affirmed
hat this was the first time this dis
tinction had been advanced in cour-.
Ach's argument related to the I'M
uusal powers given the Judge and con-
tanned many sneers at the graft pros
ecution. He used Judge Lawlor's
name in picturing a hypothetical case
and followed with remarks aimed at
immunity and judicial prejudice.
ARGUMENT FOR STATE
The reply by Harrison and Benjamin
did not cover q half hour, as against
the hour and 20 minutes consumed by
their opponents. In support Of the
law the state argued that the legisla-
lure kept well in its authority. For
The purpose Of trial the offender is
taken over the same course as IL he
mad committed a felony. The trial St
self viii convince the judge OF the
degree. whether misdemeanor or a
penal ouenSe- Inc legislature Is nam
pered only as. TO the naming of cruel
and unusual punishmentE. In all
crimes il fixes the limits OF punish
ment.
The remarks OF Judges Cooper and
Hail during the argument favored the
state. The one remarked that the leg
isIature had the right TO fix the limits
II punishment and the other that he
had never heard imprisonment either
in jsiI or penitentisry called cruel or
unusual"
The case was submitted on briefs,
which should be in within a fortnight.
Whatever the judgment may be, each
side expects an appeal TO be taken by
rhe 1oSr-