
    PEOPLE v. SPENCER.
    (Supreme Court, General Term, Third Department.
    November 22, 1892.)
    Indictment—Finding—Testimony Given by Defendant. Defendant had been called as a witness before a grand jury, and upon bis testimony and that of others certain persons were indicted for receiving bribes; defendant’s testimony showing that he had paid such persons money for being permitted to keep a gambling house. Several days afterwards the same jury indicted defendant for keeping such gambling house. Held, that this indictment was in violation of Pen. Code, § 79, which provides that in bribery cases the testimony of any offending person against another so offending shall not afterwards be used in any prosecution against the person so testifying.
    Appeal from court of sessions, Saratoga county.
    Albert Spencer was convicted of a misdemeanor. Defendant appeals. Reversed.
    Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.
    C. S. & C. C. Lester, (C. S. Lester, of counsel,) for appellant.
    T. F. Hamilton, Dist. Atty., for the People.
   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. Pen. Code, § 79. Here thesame grand jury who heard his testimony found the indictment against him. 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 resworn, or his 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 him, 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 his testimony cannot be told, neither does it make any difference. The case seems to me plainly within the principle enunciated in People v. Singer, 18 Abb. N. C. 96; People v. Briggs, 60 How. Pr. 17; People v. Clark, (O. & T.) 14 N. Y. Supp. 642; People v. Brickner, (O. & T.) 15 N. Y. Supp. 528; People v. Clements, 5 N. Y. Crim. R. 298; Counselman v. Hitchcock, 142 U. S. 547, 12 Sup. Ct. Rep. 195,—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. All concur. 
      
       Pen. Code, § 79, provides that a person offending against the laws relating to bribery is a competent witness against another person so offending, but the testimony so given shall not be used in any prosecution, civil or criminal, against the person so testifying. A person so testifying to the giving of a bribe, which has been accepted, shall not thereafter be liable to indictment, prosecution, or punishment for that bribery, and may plead or prove the giving of testimony accordingly, in bar of such an indictment or prosecution.
     