8 Utah 21 | Utah | 1892
An indictment was found against the appellant in this case, under section 4541, Comp. Laws 1888, charging him with the offense of gambling. A verdict of guilty was found by the jury, and the court imposed a fine of $300, and costs of suit, taxed at $68. The appellant alleges that the imposition of this fine and costs was excessive and contrary to law, and therefore void. The statute (section. 4541) makes the offense of gaming a misdemeanor. Section 4382, Comp. Laws 1888, as it reads in this compilation, fixes the punishment for this offense at “not exceeding six months’ imprisonment, or by a fine in any sum not less than three hundred dollars, or by both.” There is clearly a mistake in the compilation of these laws of 1888, in this respect, as well as in many other respects, and courts have come to look with uncertainty upon the authenticity of many provisions included within it. By reference to section 1847, p. 568, Comp. Laws 1876, it will be seen that the punishment for mis
The punishment imposed by the court of $300 fine was in excess of the punishment by fine allowed by law, and, being excessive, avoids the judgment, unless the court has power to modify it under section 5154, Comp. Laws 1888, which reads as follows: “The court may reverse, affirm, or modify the. judgment or order appealed from, and may set aside, affirm or modify any or all proceedings subsequent to or dependent upon such judgment or order and may, if proper, order a new trial.” So, also, by section 5152: “After hearing an appeal, the ■court must give judgment without regard to technical •errors or defects which do not affect the substantial rights •of the parties.” Under a statute in Michigan somewhat •similar, the court holds that an excessive fine or impris■onment only avoids the judgment to the extent of the excess of the judgment imposed. People v. Town, 53
The record also disclosed the fact that one F. M. Bishop, foreman of the grand jury which indicted the defendant, was called as a witness for the prosecution on the trial of the defendant. It appears from his testimony that the defendant had instituted proceedings on his own complaint against one John Scott, charging him with the offense of robbery, as having been committed upon the person of the defendant, October 2, 1890; and that, while a hearing upon this complaint was being had before the grand jury, the defendant was called as a witness, and voluntarily gave testimony concerning such robbery, and also testified that at the time of its alleged occurrence1 he was running a gambling house and faro game. Those statements were called out by the district attorney, the appellant making no objection thereto, and at no time claiming his privilege. No indictment was found against Scott on the charge of robbery, but after this, and after hearing the testimony of other witnesses, the defendant, Keggel, was indicted for gaming. This testimony was
The defendant requested the court to charge the jury as follows, which was refused, to which- an exception was taken: “(4) No person otherwise competent as a witness is disqualified from testifying as such, concerning the offense of gaming, on the ground that such testimony may criminate himself; but no prosecution can afterwards be had against him for the offense concerning which he testified. (5) If the jury find that this defendant, Samuel Eeggel, was before the grand jury on another case, and while there was examined by a prosecuting officer as to his gaming, and he answers the same, and that in consequence of his answers thus made the grand jury finds an indictment against him, then they should return a verdict of not guilty. The statute does not authorize a prosecution for the offense of gaming, the particulars of which were thus disclosed and brought to the knowledge of the grand jury.” § 4545, p. 601, 2 Comp. Laws 1888, provides as follows: “No -person otherwise competent as a witness is disqualified from testifying as such, concerning the offense of gaming, on the ground that such testimony may criminate himself, but no prosecution can afterwards be had against him for any offense concerning which he testified.” It appears from the facts in this case that the defendant, was not called as a witness for the purpose of establishing the charge afterwards preferred against .him, but for the purpose of establishing the complaint he had himself made against Scott, charging him with robbery. The offense concerning which he testified was robbery. He was not called upon to testify about any other offense unless he chose to Avaive his privilege and do so. No objection was made by him against testifying to what he did testify to; indeed, from all that appears, he was a willing witness, in pursuit of his chosen object. If he could not give evidence upon a
