Sandwich v. State , 137 Ala. 85 ( 1902 )

DOWDELL', J.

The defendant was tried and convicted on an indictment for gaming, and from that judgment of conviction lm prosecutes this appeal. The defendant claimed immunity from prosecution for the offense* charged under the provisions of section 4805 of the Criminal Code. He sought to avail himself of the provisions of this statute first by motion to quash the indictment and then by plea, the motion having been overruled.' The protection guaranteed in section 4805 to the witness testifying as to gaming, against being prosecuted for any offense of gaming so testified to by him, Avlien being called to ansAver generally as to any such offense, Avithin his knowledge; committed' within thetAvelve months next preceding, Avitbout first being specially interrogated as to any particular offense, is a question for the determination of the court, and the motion to quash the indictment Avas flu* proper practice. — Sparrenberger v. State, 53 Ala. 481. On tin* hearing of the motion, it Avas sIioavii Avit.liout contradiction, that tin* defendant was summoned before the grand jury that preferred the1 indictment, to give evidence of any violation of the haws against gaming, and Avas required to answer generally as to any such offense; Avithin his knoAA’ledge, committed Avithin the twelve months next, preceding, AAdthout having been first specially interrogated as to any pariicular offense; that he testified to a game played Avith cards, in Avhioh witness himself had participated; that the indictment against him was for the particular game testified to hy him as a -witness before the grand jury, and was found against him aflea- lie had given his testimony before the grand jury. This evidence clearly put Ike defendant within the protection of the provision of the statute against a prosecution, and on it, undisputed as it was, the motion to quash the indictment should have been sustained. The fact that another witness had been called before the grand jury, before the1 defendant, and, that such other witness had testified lo (he same game, implicating the defendant, in it, would not. deprive, the. defendant of the immunity afforded hy the statute, upon the theory that the indictment against, him was found on the testimony of such other witness. It is wholly immaterial and unimportant, that there was other evidence adduced before the grand jury, which was sufficient, without regard to that, given by the defendant, to authorize- the finding of the- indictment. The fact remained, that the defendant was indicted, after he had been required as a witness to answer generally as to any violation of the laws against gaming within his knowledge, and had. so answered, thereby entitling himself to protection from prosecution as to any such offense so testified to hy him.

It is unnecessary to consider the questions which prose on the trial before the jury upon the admission and rejection of evidence, since the motion to quash the indictment should have been sustained, and for the refusal of which by the court, the judgment must he reversed and a judgment will he, rendered quashing the indictment and discharging the defendant • ■

Reversed and rendered.