In Re McDonald

CASHIN, J.

Petitioner is held by the sheriff of San Mateo County on a warrant issued by the city court of the city of San Bruno. He seeks to be released on

habeas corpus,

claiming that the complaint upon which the warrant was issued fails to state a public offense.

The complaint charged a violation of section 337a of the Penal Code, the facts being alleged as follows: “That on the 22nd day of August, A. D. 1927, at Tanforan in said county the San Francisco Jockey Club, an association, held a horse-race on a race-track controlled and operated by it for that purpose at Tanforan, in said county of San Mateo and state of California, to test the speed of horses which might be and which were regularly entered in said race, and invited the owners of horses to enter the same in said race, and offered a purse of not less than five hundred dollars ($500) and as much more as the judge or judges presiding at said race, after ‘the same had been run, should conclude, determine and fix for the winners in said race, to be distributed as follows, to-wit: seventy (70%) per cent of said purse to the owner of the horse finishing first in said race; twenty (20%) per cent to the owner of the horse finishing second in said race and ten (10%) per cent to the owner of the horse finishing third in said race, and that five horses were entered in the race designated on the printed program as Race No. 1 under the terms and conditions of the written contract of entry made between the owner of each of said horses and said San Francisco Jockey Club, which among other things provided as follows, to-wit:

[364]

“ ‘That owner of the above entered horse hereby leases the horse to the said San Francisco Jockey Club for the above named race under the following conditions, to-wit: That should the horse finish first said San Francisco Jockey Club will pay said owner seventy (70%) per cent of the purse or prize as fixed and determined by the judge or judges presiding at said race, after the running of said race said purse to be not less than the sum of five hundred ($500) dollars; should the horse finish second twenty (20%) per cent, and if it finishes third ten (10%) per cent.

“ ‘The owner agrees to deliver the horse to the paddock fifteen minutes before the time set for said race in proper racing condition, with racing paraphernalia and a competent rider, and also agrees to hold said San Francisco Jockey Club blameless for any injury in said race, ’ and that said San Francisco Jockey Club published and circulated a printed program which designated the race or contest of speed and the horses entered therein by number, and that one of said horses so entered in said race No. 1 was designated as No. 501 on said official program, and that the above named defendant James S. McDonald at said time and place handed to John H. Gagliardo, then and there an employee of and representing and acting for the said San Francisco Jockey Club, the sum of ten ($10) dollars in lawful money of the United States of America, which said sum was then and there received by said John H. Gagliardo as such employee of said San Francisco Jockey Club, and thereupon the said John Gagliardo so representing and acting for said San Francisco Jockey Club, did then and there issue and deliver to the said defendant James S. McDonald, to evidence the terms and conditions upon which said sum of money was delivered to and received by said San Francisco Jockey Club, a receipt in return for said sum in words and figures as follows, to-wit: ‘San Francisco Jockey Club. Tanforan, San Mateo county, California. August 22nd, 1927. (The numbers correspond with the number of the race and entry on the printed program.) Amount $10.00. Race No. 1, Entry No. 501. (The above sum is received on the conditions printed on the reverse side hereof.) ’