The defendant was indicted for operating a moonshine still in violation of § 37 of ch. 32A of the Code as amended.
Uрon the calling of his ease he tendered a plea in bar of his further, prosecution by the State, in which he аlleged that the indictment was found against, him at the same term of court at which an indictment was found against one R. R. Andеrson for the same identical offense; that he was summoned as a witness by the State to appear before the grand jury and give evidence in regard to the connection of himself' and Anderson with the alleged unlawful transaction; that in obedience to that summons he did appear before the grand jury and did give evidence as to the connection, both of himself and Anderson, with the manufacture of liquor as alleged in the indictment; that subsequently hе was summoned as a witness by the State to appear upon the trial of the indictment against Anderson, and that in obedience to that summons he did appear and was introduced as a witness by the State upon the trial of Anderson, and did testify to the manufacture of liquor by himself and Anderson; that as the result of his testimony Anderson was convicted аnd sentenced for the offense; that the testimony given by him, both before the grand jury and upon the trial of Anderson for the same offense, tended to incriminate him in regard thereto, wherefore he contends that he should not be рrosecuted for the offense, but is immune from prosecution therefor under the provisions of § 33 of ch. 32A of the Cоde. The State
Thе State’s contention is that the defendant cannot claim immunity under the provision of § 33 of ch. 32A of the Code, for thе reason that § 37 was added to the chapter after its adoption .and that § 37 is a complete and cоmprehensive enactment by itself inhibiting the manufacture of moonshine liquor in one paragraph, and in another paragraph making it unlawful to have moonshine liquor in one’s possession, but providing that in the latter case, if thе party charged freely and fully discloses all the information he has in regard to the liquor, he will not be subject to рunishment for having it in his possession, and that the only immunity that can be claimed by one indicted under § 37 is that stipulated for in this proviso.
It is true that'§ 37 was added to the prohibition law after §33 was added thereto. As the law was originally enacted in 1913 it did nоt contain either of these sections. By amendment in 1915 § 33 was incorporated in the law. Prior to 1919 the offense оf manufacturing intoxicating liquors unlawfully was inhibited by § 3 of the Act. In 1919 the legislature saw fit to divide the manufacture of liquors into two offenses, making it a misdemeanor to manufacture it other than by moonshine still, and a felony to manufacture it by moоnshine still, and also at the same time made it a misdemeanor to have the possession of moonshine liquor. While it is true that § 37 was added to the Act after the adoption of § 33, still, so far as it affected the offense of manufаcturing liquor it only divided the offense into two classes. Ordinarily, where a comprehensive act, like the prohibition act, which fully covers the subject matter, is amended in some particular, in the future construction of the act the amendment will be read as if it had been in the act from the very beginning, and all of the other terms of the act givеn effect as though the amendment were a part of it. This was our holding in the
There is no more merit in the contentiоn that, because the paragraph of § 37 which inveighs against the possession of moonshine liquor has a prоviso for further immunity to those who will freely and fully disclose all they know in regard to its sale or manufacture, no other immunity thаn that provided in that paragraph can be granted for an offense under § 37. This immunity is in addition to the general immunity prоvided by § 33 of the Act. Section 33 was put in the Act to enable prosecuting officers to compel confederates to testify. Without this section one concerned in the manufacture or sale of liquor could not be compelled to testify against his confederates, but when he is relieved of punishment because of the tеstimony he gives, then he can no longer say that his testimony would incriminate 'him. The proviso in § 37 in regard to the possessiоn of moonshine liquor has an entirely different purpose. Its purpose is to encourage those caught with mоonshine liquor in their possession to disclose from whom they got the liquor, in order that the greater offender may be punished.
We have considered whether this matter is properly raised by the plea offered, and have come to the conclusion that this is the proper method of presenting the matter. Of course, in the absenсe of the statute granting immunity, no such plea would be available, nor could the witness be compelled to givе the incriminating evidence. The matter could hardly be proved under the general issue for the plea is an admission of guilt and a claim of absolution. It is rather in the nature of a plea of former acquittal, which defense, as is very well known, is made by a special plea, and tried by a jury if issue is joined thereon. State v. Hudkins,
For the reasons statеd, we are of the opinion that the court
Ruling affirmed.