16 P.2d 172 | Cal. Ct. App. | 1932
Certain persons defendant were in the municipal court having their preliminary examination under charges of violation of section
That the answers to the questions propounded might tend to incriminate petitioner is not questioned, and the constitutional privilege was rightfully exercised unless the offenses named in the charges against said referred to defendants are covered by the immunity statute. The section containing the provision for immunity (Pen. Code, sec.
Hereinafter we shall refer to code sections chiefly by number, and in every instance the Penal Code of California is meant. We shall occasionally use italics to direct attention particularly to words and passages; they are ours, in every instance.
If this immunity statute is broad enough to cover the two offenses referred to, petitioner cannot avail himself of *426
the constitutional privilege, for the reason that he is forever protected from conviction or punishment for any offense concerning which he may be required to testify. (Ex parteClarke,
It will be of some importance to a complete understanding of petitioner's argument to recall that the three Penal Code sections of which we take particular note, viz., 330, defining gaming and providing a penalty for violation; 334, the immunity section, and 337a defining the substantive offenses here cognized, are all in chapter X of the code, headed "Gaming". Section 330 comes first, and covers generally a prohibition against the playing of, handling and dealing certain card games for percentage or for value. It also includes playing with dice or any device for value. This section is subheaded, "Gaming Prohibited — Penalty". Section
To express the immediate problem in other and perhaps clearer words: Does the immunity go alone to the offenses referred to in section 330, or does it go to all gaming offenses, and are the offenses of 337a gaming offenses?
It is appropriate that we here get a clear understanding of the meaning of the term "gaming". Wharton's Dictionary of Jurisprudence, issue of 1860 (within the period of the early legislation), gives this definition: "Gaming or gambling, the art or practice of playing and following up any game, particularly those of hazards, as cards, dice, *427
eo-tables, etc." "The terms `gaming' and `gambling', in their criminal sense, are synonymous. They have been used interchangeably in Rev. St. 1842, C. 220, secs. 3, 4; Gen. St. 1867, C. 254, secs. 6, 7, 8. The distinction between `betting' and `gaming' is that `gaming' always includes a wager, while betting is not gaming unless the wager be laid on a game. It is betting on the game that constitutes gaming, and those game or gamble who thus bet. The word `game' is very comprehensive and embraces every contrivance or institution which has for its object to furnish sport, recreation or amusement. Let a stake be laid upon the chances of a game, and we have gaming." In reOpinion of Justices,
We shall now briefly review the history of gaming or gambling legislation in our state. When California so unceremoniously pushed herself into the Union as a fullformed state she had just emerged from a remote pastoral region to the greatest of all mining camps, and was host to the world's most venturesome denizens. There was, indeed, little chance for the satisfying society of the family circle, and there were none of the intellectual stimuli of a settled country. Men picked up fortunes from around their feet and valued them lightly, for there were others merely for the taking. Fortunes were the footballs of the period, and the goal was to win by the player's wits or luck. It is not strange, then, to find the second legislature, in 1851, passing a gambling license law, accepting gaming or gambling as a part of the custom of the day. Betting and *428
gambling were not illegal. (Ex parte Roberts,
The Gaming Law as above delineated was the unquestioned predecessor of the code sections under chapter X of the present Penal Code entitled "Gaming", the old statute being broken up and rewritten in separate sections of the code. The section of the old statute that prohibited gaming (naming many games and referring to others) became section 330. The section of the old statute against owners and occupants of places in which prohibited gaming was carried on became section 331 of the code. Section 332 is new matter and prescribes the penalty for fraudulent playing. Section 333 is a repetition of the old statute penalizing a summoned witness for absence. Section
This history demonstrates that the legislature, after one experience of legalizing gambling by "license", soon changed its attitude and made an attempt to "suppress" and then to "prohibit" gaming. It legislated, through the provisions of section 330, against gambling methods in use at the time and prohibited gaming in general terms, thereby providing against new or different gambling methods of the future. Conviction was difficult, for witnesses were very likely to be involved in the very charges being investigated or in others related closely thereto. It was necessary, of course, to produce evidence in court, and the constitutional privilege blocked the efforts of the enforcement officers. The first immunity section was directed against all illegal gaming. When a chapter was given to gaming in the code the sections of the old statute became code sections. The immunity section had theretofore referred to all offenses mentioned in the act which then included all of the gaming offenses, but when it was carried into the code its provisions were not specifically limited to the prohibitions of section 330 as transplanted from the old act, but, instead, were given the wide application embraced in the term "concerning the offense
of gaming". Clearly, as it seems to us, this was a generalization purposely designed to cover whatever was then or might thereafter be added to the law relating to that subject. Just as contemplated, the chapter has been added to from time to time, providing other offenses related to games or gambling. It is true that some of the new sections of the chapter relate to bribery in connection with games, and it may be that section
[1] We conclude that the effective operation of the immunity section is not limited to section 330, but that it comprehends all offenses concerning gaming or gambling.
Coming now to the second phase of the problem before us, we shall consider whether or not the offenses charged against the referred to defendants are "offenses concerning gaming". We quote from the commitment: ". . . [D]efendants in Count I of said complaint [were charged] with the crime of conspiracy to violate section
[2] After what has already been said herein it seems too plain for argument that count 2 as above set forth is of itself an offense of gaming. Exactly the same can be said as to the offenses defined in section
The overt act, alleged as having been committed are a part and parcel of the offense of gaming. They are plainly *431 "concerning the offense of gaming". If we follow the argument of petitioner in this particular we should have to hold that notwithstanding our conclusion that the immunity section would protect a witness in a trial on the substantive offense from prosecution, the witness could nevertheless be prosecuted in a trial upon a conspiracy charge, provable in part at least by the very testimony given by him in the former trial. If such a holding is reasonable and therefore necessary it would completely destroy the efficacy of the statute in question, for the immunity would not be coextensive with the Constitution. By the most liberal construction this meaning cannot be gotten from the section. [3] What the statute means is that a witness called to testify to facts concerning or relating to the offense of gaming can safely testify for the reason that he is forever free from the possibility of punishment for any crime in the proof of which such testimony would be material. Such a construction is literally what the statute says, and it preserves the whole meaning and intention thereof. Such construction brings the statute within the rule that it must be coextensive with the Constitution.
It may be said that the statute refers less to the name of the offense than to the facts constituting the offense. Any witness who testifies to facts concerning or relating to prohibited gaming is immune from punishment for any offense in the proof of which such facts would be relevant and material. The principle is illustrated in People v. Schwartz,
The case of People v. Newmark,
We conclude that the statute grants an immunity coextensive with the Constitution, in accordance with the doctrine ofCounselman v. Hitchcock,
The writ is discharged.
*433Works, P.J., and Thompson (Ira F.), J., concurred.