14 Ala. 450 | Ala. | 1848
The tenth section of the sixth chapter of the penal code enacts that “the attorney general and the several solicitors of this State, shall have the power, and it shall be their duty to send a summons to any person or persons, in the name of such solicitor or attorney general, directing them to come before the grand jury of the proper county, and to give evidence of any gaming in violation of the laws of this State against that offence; and the person or persons so summoned, shall not be liable or subject to an indictment for any offence of which he may have given evidence ; and the attorney general and the several solicitors are authorized to issue a summons as aforesaid, not only while the grand jury is in session before which the witness may be required to testify, but at any time previous to the sitting of the court at which they are impanneled; and if any person shall fail or refuse to attend and testify in obedience to such summons, he shall be liable to indictment, and on conviction, shall be fined in any sum not less than twenty, nor exceeding five hundred dollars, and sentenced to a term of imprisonment not exceeding three months: Provided, all reasonable excuses shall be heard. Clay’s Dig. 432. This enactment very clearly indicates a strong desire on the part of the legislature to suppress the pernicious vice of gaming, not only by the power conferred upon the prosecuting officer of the State to issue subpoenas, but the extended scope allowed to the grand jury in the examination of witnesses subjected to their inquiries. The general terms, “to give evidence of any gaming in violation of the laws of this State
In Ward v. The State, 2 Miss. Rep. 120, the supreme court of Missouri held, that the general interrogation of witnesses according to the mode adopted in the case before us, was perfectly legitimate. That it was the duty of the grand jury to pursue this course where they had probable cause to believe that offences had been committed, which they could not otherwise discover. They are not required, say the court, to go “ into the secret recesses of gamblers, and gambling devices, to ask and seek information, but to send for persons who might in their opinion be most likely to possess evidence relating to these matter's. It is a solemn and important duty that every citizen owes to his country, to give evidence in courts of justice against offenders against the peace, and good order of the community. A grand jury should be considered trust-worthy in this matter. They stand as a rampart between a malicious or incensed prosecution in case of life and death ; no man can be brought to trial on the lowest or highest offences known to the law, unless
At the common law, it was clearly competent for the court to treat as a contempt the refusal of a witness to give evidence to a grand jury; but in a case coming within the statute we are considering, the perverseness of the witness is made an offence against criminal justice punishable under an indictment, and the punishment denounced may be more efficacious for the correction of the evil. But however this may be, it is enough that the legislature have said, that the failure or refusal “to attend and testify,” shall not be regarded as a contempt merely, but shall be prosecuted and punished as a misdemeanor. The common law power, which was given as a means of vindicating the majesty of the law, is superseded by the provision that the witness shall be indicted — thus the incidental power of the court is impliedly abrogated, and to warrant the punishment of the witness, he must he proceeded against, according to the statute.
It is not enough to relieve the witness from a prosecution, that he attended in obedience to the subpoena, but he should also “ testify.” He is brought before the jury to gi*e evidence, and if he withholds his testimony, he subjects himself to an indictment, and the consequences which are provided. The criminal court did not take this view of the matter, but punished summarily for a contempt. Its judgment* is conser quently reversed.