The San Francisco call., 1909-11-27
HORSE RACE CASES
ARE NOT DECIDED
Judge Samuels POstpOnes Ac-
tiOn Until Monday After
Hearing Testimony

OAKLAND. Nov. ga fine distinction
between betting and gambling was
drawn in The police court this morning
bv Attorney Carroll Cook of counsel 1or
,be New California jockey club during
che nrelirnfnary examination Of T. T.
,fsrtfn : well known book maker. and
charles Brown. alias Devinsky. who are
charged with violating the otis-Walker
srti-racetrack gambling law by accept
ing bets at the Emeryville track
Cook oontended that the provisions
~ The law are absurd and unreasonable
ard he concluded his argument win
,bflosophicsI dissertation upon gam
bling. o,,aria5
What is gambling% he querleu-
Under the common law II was ny
ANONYMOUS with betting 1ile-sO
fsw AFFORDED recovery on wager hlaue
n something not in the nature OF sam
hing Gambling is the stalking OF
something Of value on chance bettlhs
* the stalking Of something OF Naiue on
skill or speed or endurance
LIFE ONLY GAMBLE
If betting on a horse race is gam
bling. then everything in life IS gam
bI5nr. The laying of a wager on tiie
sneed or power Of endurance OF morse
On IN. skin OF jockey IS no nor
gambling than any investment IN ."e
business world
Despite Cooks assaults upon
validity Of the law Judge Samuels over
- lis obiections to a hearing Of the
couDlafnts against Martin ana otoF' Il
snd after listening 10 the testimony IN
reduced by the prosecution announced
tba+ bs vtouId give his decision Monday
morning -, rS..o,-
Depufv District Attorney Phil carey
who represented the state placed HN9
witnesses on the stand in an efIort 70
prove that the defendants hao u 80. 80
.-ressed the law The witnesses were
George J. Helms OF san Leandro- VINO
was employed by the district attorney
Office to secure evidence against tne
FmeryviIle book makers; Wliiiam n
Soule. assistant clerk OF the scales dt
tbe Fnervville course: Sheriff Barnet
and Deputy Sherifs Brown and sherry.
MEMORY BET DESCRIBED
Helms testified that ne had wagereo
50 with Brown. who is alleged 10 nave
acted as an employe Of Martin, on Ihe
morse Rose Cherry in the second race
Al EmervviIle last Monday afternoon.
when I gave the money to Brown
asked him whether he would give me
rfFHG Of , 10 n. Hd4Q IlCA4llE- -D-'Ff -
turned 10 Martin and asked him Wbeth-
or the odds were satisfactory Martin
7-enlied Yes Then Brown turned 10
anofber man and said, This man is on
Rose Cherry for 81
II was not shown that Martin hao
actually handled the money or tnat ne
had in definite language authorized the
acceptance OF the bet Deputy Distrlc. s,'
Artoruev Carey contended that Wlthoul
Martins scouiescence in the odds the
wager could not have been made, but
srtornev Cook maintained that this wa:
merely an expression Of opinion py th'
prosecutor and that II was not baset
upon the testimony
N DUAL CAPACITY
The complaints against Martin ant
Brown aIlege that the men acted botf
as book makers and stake holders
Prior 10 the opening Of the examination
Attorney Cook stated privately that hf
did not consider stake holding mega
and that he hoped 10 carry brown
case 10 the supreme court OF the sIat'
and secure q ruling on that point Mar
4fn IS hopeful that his case viii be dis
missed in the police court on the GROUND
that the evidence against him is insult
ficient TO prove the offense-
After he had concluded his disserta
lion on gambling Attorney COOK at
tackled the OBSERVATION-DISCLOSURES u ~
Vvslker-OtiS law on the ground that tn
legislature which framed it in prOvid
ing that offenses against the law migh
be held either felonies or misdemeanor
had delegated TO the courts Of the stat
q mower Of pardon. This power, Cool
declared, is not properly judicial tune
rion but by the constitution OF IN
state can be exercised only by the ex
ecutive department
To reduce q crime from a felony I
8 nfsdemeanor IS an exercise Of par
doning power" declared Cook. an
therefore not q constitutional functio
81 :. court. The legislature, except i
cases OF treason. has no power 10 par
don. and having no such power Ger
tainly can not delegate it TO cour
II The penalty provided by this statut
is void the entire statute must fail.
Judge Ssmuels overruled this objec
lion TO the validity Of the law also. an
f-oclr Noted an execution.