
    Supreme Court-General Term-Third Department.
    November 22, 1892.
    PEOPLE v. ALBERT SPENCER.
    (48 St. Rep. 803; 66 Hun, 149.)
    Criminal law—Witness—Immunity.
    The indictment of a witness for the people by the same grand jury before whom he has testified on the same matter violates the immunity afforded by section 79 of the Penal Code. So held, where the defendant was subpoenaed before the grand jury and gave testimony as to his having given money to the police commissioners to-be permitted to keep a gambling house, on which they were indicted, and a few days after the same jury indicted defendant for keeping a gambling house.
    Appeal from judgment of the Saratoga court of sessions, convicting defendant of the crime of keeping a gambling house,, and from order refusing to quash the indictment.
    C. S. & C. C. Lester (C. S. Lester, of counsel), for appellant.
    T. F. Hamilton, dist. att’y, for respondents.
   HERRICK, J.

The defendant was subpoenaed before the grand jury to testify as to his having given money to the police ¡commissioners to be permitted to keep a gambling house, and upon his testimony, with that of others, such commissioners were indicted for bribery, his testimony showing that he had paid them money for such purpose.

A few days after the same grand jury indicted the defendant for keeping a gambling house.

Having used the defendant as a witness his testimony could not be used against him. Penal Code, § 79. Here the same grand jury who heard Ms testimony found the indictment against Mm. The fact that it was found a few days after he was sworn and after the charge upon which he was sworn was acted upon, it seems to me, makes no difference. If it had been the testimony of another witness, they would have had the right to consider it although he was not reswom, or Ms testimony read •in the .second case, and the jury could not very well dismiss from their minds his testimony given in the first case in their consideration of the second one.

When a witness is used under such circumstances, the utmost good faith should be observed in dealing with Mm, and the spirit as well as the letter of the law should be regarded: here it seems to me both were violated. How much the grand jury was influenced by Ms testimony cannot be told, neither does it make any difference.

The case seems to me plainly within the principle enunciated in People v. Shaw, 18 Abb. N. C. 96; People v. Briggs, 60 How. 17; People v. Clark, 14 N. Y. Supp. 642; People v. Brickner, 15 id. 528; People v. Clements, 5 N. Y. Crim. Rep. 298; Counselman v. Hitchcock, 142 U. S. 547.

And it was a violation of the immunity granted to a witness by section 79 of the Penal Code.

The judgment of conviction should be reversed, and the indictment dismissed.

MAYHAM, P. J,, and PUTNAM, J., concur.  