
    WHITE v. STATE.
    (No. 6618.)
    (Court of Criminal Appeals of Texas.
    Jan. 25, 1922.)
    Criminal law <&wkey;42—Participant in gambling game summoned to testify before the grand jury could not be prosecuted therefor.
    Defendant, who had been summoned and examined before the grknd jury as to a game of cards in which he had participated, under Pen. Code 1911, art. 574, providing that any person so summoned and examined should not be liable for prosecution for any violation of said article about which he may testify, could not be convicted for participating in such game.
    Appeal from Hamilton County Court; J. C. Shipman, Judge.
    T. M. White was convicted for unlawfully playing cards at a place other than a private residence.
    Judgment; reversed, and cause remanded.
    G. C. Lewis and A. R. Eidson, both of Hamilton, for appellant.
    R. G. Storey, Asst. Atty. Gen., for the State.
   MORROW, P. J.

The conviction is for ' unlawfully playing cards at a place other than a private residence.

The evidence showed that appellant played a game of cards in the office of T. M. White with Y. A. Hartman, S. C. Carlton, and J. T. Lovelace about December 1st.

The appellant, before he was aware that the indictment had been returned, was summoned before the grand jury and testified as a witness and revealed the fact that the particular game upon which the conviction rests was played.

It is provided by law that a participant in a gaming ease may be compelled to attend an inquiry into the offense and give evidence. In the article, however, it is said:

“Any person so summoned and examined shall not be liable to prosecution for any violation of said articles about which he may testify.” Penal Code, art. 574.

In construing this article, it is held that where one is on trial charged with gaming, he- may prove as a defense that he was subpoenaed before the grand jury, and in obedience to its requirement gave evidence touching the transaction. Griffin v. State, 43 Tex. Cr. R. 428, 66 S. W. 782. Therein it is said:

“It would mate no difference whether the grand jury had returned the bill or was simply examining into the transaction. If the testimony of one of the participants is used by any of these tribunals, courts, or officers in behalf of the state, it exonerates the witness whose testimony is sued by virtue of the terms of the statute.”

But for the statute providing for immunity, a participant in a gambling game could not be required to testify thereto. The statute gives him immunity. The state, having availed itself of the statute to secure appellant’s testimony, cannot deny him exoneration from prosecution to which, under the same statute, he is entitled. Dodson v. State, 89 Tex. Cr. R. 541, 232 S. W. 837.

The judgment is reversed, and the cause remanded. 
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