In Re Walker

THE COURT.

This is a petition for a writ of

habeas corpus.

Petitioner was charged with a violation of section 337a, subdivision 3, of the California Penal Code, making it a crime to receive, hold, or forward a sum of money or other thing of value, to be placed as a bet. The stipulated facts show that on December 29, 1937, in the city of Los Angeles, the complaining witness solicited petitioner to place a $2 bet on a certain horse in a race' to be run at the licensed race track at Santa Anita, California. . Petitioner agreed to do this, and charged a fee of 10 per cent, or 20 cents, for this service. Thereafter petitioner telephoned his representative in the vicinity of the race track, instructed him to place the bet, and the representative went within the enclosure and purchased a ticket which entered the bet through the pari-mutuel machine. When the race was run, petitioner informed the complaining witness of the result, and was thereupon arrested. At the preliminary hearing, he was held for trial, and sought this writ.

Petitioner is obviously guilty of a violation of the terms of said section 337a (3) of the Penal Code. The question before us is whether that section is operative under the facts set forth above, or whether it is inapplicable by reason of the provisions of the “Horse Racing Act” of 1933, as amended in 1935. (Deering’s Gen. Laws, Act 3421.)

The said statute provides for licensed horse racing, and establishes a regulated form of wagering on races under what is known as the “pari-mutuel” system, the bets being placed through the pari-mutuel machine or “totalisator” located inside the race track enclosure. A legal wager could be made

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under the act only through the machine, within the enclosure, and only on the dates for which horse racing is licensed. Where the conditions laid down by the act are followed, wagering on horse races is legal, and therefore the statute creates an exception to the general prohibitions contained in the Penal Code. But the act does not purport to repeal section 337a of the said code. In section 3 of the act it is stated: “All other forms of wagering or betting on the result of a horse race shall be and remain illegal and any and all wagering or betting on horse races outside the enclosure where such horse races shall have been licensed by the board shall be and remain illegal.” Section 15 similarly declares that all other forms of wagering shall be punishable as provided in the Penal Code. (See