122 Cal. 201 | Cal. | 1898
On the fifteenth day of June, 1898, in the superior court of the city and county of San Francisco, sitting with a jury impaneled for the purpose, one Minnie Campbell was being tried upon a charge of having obtained money by false pretenses from the petitioner herein, Alfred Overend. On the forenoon of that day the petitioner herein, Overend, was called as a witness for the prosecution on the said trial, and declined and refused to answer certain questions asked him by the prosecution, upon the ground that the answers would tend to convict him of a felony. The first question which he refused to answer upon that ground was, “Do jrou know this defendant, Minnie-Campbell?” Other questions were asked him, such as, “Do you know the codefendant Lewis?” and, “Did you meet the deiend
Petitioner contends that the power of the court to punish him for contempt for not answering the said questions was exhausted by the first orders sentencing him to imprisonment for five days, which time has expired; also, that his claim that answering the questions would tend to convict him of a felony was conclusive; and, moreover, that if it was within the province of the court to itself determine whether his answering the questions would have that tendency, the main grounds on which the court based its rulings—namely, that it appeared to the court already, “by a certain transcript here on file, and being part of the records in this court, that the witness had heretofore, in this particular case in the examining court, appeared and there testified in answer to some of these questions, not objecting then at all, but allowing himself to testify fully,” and that “it appears also by the witness’ own statement that he has applied to the district attorney, the prosecuting officer of this court, and requested him to discontinue the prosecution of this ease,” are untenable; also, that the judgment imposes two distinct punishments for the same offense—the first under section 1218 and the second under section 1219 of the Code of Civil Procedure. Some of these contentions present interesting questions, but we do not deem it necessary to discuss them, because, in our opinion, the petitioner must be discharged upon another ground.
The term of imprisonment for five days has terminated; and as the jury in the case of People v. Minnie Campbell has been discharged, and the trial at which the petitioner was called upon to testify ended, it is no longer possible for him to testify at that trial, and he cannot be imprisoned indefinitely for the non
The petitioner is discharged from custody, and the sheriff is directed to release him.
Beatty, C. J., Van Fleet, J., Garoutte, J., and Temple, J., concurred.