People v. Reggel

MINER, J.: 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 — 24 — demeanor, where no other provision is prescribed, is by imprisonment in the county jail not exceeding six months, or by a fine not exceeding $300, or by both. This section was amended in 1878 (see chapter 4, p. 5, Laws 1878), so that the imprisonment may be in the county jail not exceeding six months, or by a fine in any sum less than $300, or by both. In order to remedy and correct the many errors occurring in the compilation of 1888, the legislature of this Territory passed an act, to be found on page 137, Sess. Laws 1890, which provides, among other things, “that this approval [of Compiled Laws of 1888] shall not be held or construed to be a repeal of any of the original acts or laws included in these Compiled Laws, but such original laws and acts shall control wherever there is a difference between said acts or laws and said Compiled Laws;” so that chapter 4, p. 5, Laws 1878, so far as it refers to the punishment for misdemeanor, should be construed as continuing in force, and as not affected or repealed by section 4382, Comp. Laws 1888. 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 — 25 — Mich. 488, 19 N. W. Rep. 158; People v. Seller, 58 Mich. 327, 25 N. W. Rep. 304; Brown v. People, 39 Mich. 57; People v Parkhurst, 50 Mich. 389, 15 N. W. 522. See also, People v. Brotherton, 47 Cal. 388, 404; People v. Sprague, 53 Cal. 491; People v. Turley, 50 Cal. 469; Reynolds v. U. S., 98 U. S. 168, note; Ex parte Lange, 18 Wall. 163; Basset v. U. S., 9 Wall 38; Comp. Laws 1888, §§ 5113, 5259, 5260. In this last case the judgment was ordered amended by the Supreme Court of the United States. We think this court has the power and should modify the judgment and sentence so that the fine imposed should be the sum of $299 instead of $300. Reynolds v. U. S., 98 U. S. 168, note. Under section 5253, Comp. Laws 1888, the court has authority to impose costs in addition to the fine. This has long been the practice in this Territory, and the judgment would not be excessive for that reason. 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 — 26 — admitted under objection as to the competency of Bishop to disclose what took place before the grand jury. 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 — 27 — hearing he had voluntarily instituted against another without disclosing facts and circumstances which would make his own guilt apparent, or, at least, capable of proof, in connection with another offense, it is the misfortune of his condition, and not any want of humanity in the law. He alone had the right to claim his privilege, and decline to answer any question that might tend to. criminate him, either in connection with the charge made or any other with which he was connected; the received doctrine being that a witness is entitled to decline ansAver-ing, not only questions Avhich directly criminate him, but. also any question which may apply to facts forming links in the chain of criminating evidence; and, where he has not actually admitted criminating facts, he may stop short at any point, and determine that he will go no further in that direction. He chose to make a voluntary statement connecting himself with the offense of gaming, which was not the offense concerning which he was called to testify, and upon his - testimony, together with other evidence afterwards obtained, he Avas subsequently indicted by the grand jury. The statute referred to ‘is found in chapter 10, entitled, “Gaming,” and has reference to the offenses of “gaming” included in that chapter, and was intended to render all persons, not othenvise disqualified, competent witnesses against all others who might be charged with either of the offenses of gaming included in that chapter, The last clause in the section has reference to the commission of some offense enumerated in that chapter concerning Avhich he testified. We find no error in the refusal of the court to chai-ge as requested, nor do we find the court committed any error in alloAving Witness Bishop to testify to what occurred before the grand jury. The statute (§ 4921, Comp. Laws 1888) enjoining the rule-of secrecy of the proceedings before the grand jury, is intended'only for the protection of the jurors and the public. The Avitnesses cannot invoke it after the hearing — 28 — before the grand jury is terminated; nor can witnesses take advantage of this obligation in a criminal proceeding against them; nor., under the facts in this case, is there any reason why the grand jury should not have indicted the defendant on the voluntary admission made under oath before them. These propositions are sustained by authority. People v. Northey, 77 Cal. 618, 19 Pac. Rep. 865, 20 Pac. Rep. 129; People v. Young, 31 Cal. 564; State v. Broughton, 7 Ired. 101; U. S. v. Kirkwood, 5 Utah, 123, 13 Pac. Rep. 234; Bish. Crim. Proc. § 1255; People v. Kelly, 47 Cal. 126; Whart. Crim. Law (9th Ed.) § 664. The judgment and sentence of the third district court are affirmed in all respects, except that the fine of $300 imposed is reduced to the sum of $299, and as thus modified, the judgment and sentence shall stand affirmed and fixed by this court. Audeeson, J., and BlacKbueé, J., concurred.