The record-union., 1891-04-04

quit the defendant, Brown. He based his
motion on Section 334 of the Penal Code,
which provides that d person who testi-
fies at the trial of another for gaming,
cannot be prosecuted for any offense con-
cerning which he testified. Usually in
all criminal cases the law permits any
and all witnesses to refuse to testify,
should it appear that their testimony
would tend to criminate themselves. But
in the trial Of persons charged with gam
ing it appears that this privilege is not
given-a witness is compelled to testify.
To offset any damages that may arise,
however, as to the safety of the witness,
the law in these cases specifies that the
testimony given by such witnesses can
not afterwards be used against him.
II BLACK AND WHITE.
The exact wording of the particular sec
tion of the code referred to by Mr.. John
son is as follows: mo person otherwise
competent as a witness is disqualified
from testihYing 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 was now obvious why Mr.. Johnson
had been so persistent in showing that his
client, Brown, was witness at Tucker S
trial, and that he had given evidence tend
ing to criminate himself
Mr.. Ryan and Judge Catlin reached for
their codes simultaneously.
AThe District Attorney, after digestlng
the section, held whispered consultation
with his deputy, ex-Judge Buckley.
Then he rose, wearing triumphant /
observation-disclosures smile, and informed
the court that Mr.. Johnson was laboring
under hallucination. The section he had
referred TO only affected these who had
testified in cases where the defendant was
charged with gaming In the case on
hearing, however, the defendant was
charged with .'felony-obtaining money
by trick and fraud.'
NOTHING DAUNTEp.
But attorney Johnson was not to be
knocked out' at this stage of the pro
ceedings.
He called the attention of the court and
of Mr.. Ryan to the fact that he (Mr.
Ryan had been reading from an abridged
copy OF the code; that the regulation
code placed ''obtaining money by trick
and fraud under the head of gaming,'' .
and Mr.. Ryan's point was therefore
| pointless.
Judge Catlin read the section over sew
eral times and acknowledged that Mr.
Johnson was right.
Mr.. Ryan protested vehemently. He
/ declared that such a law would be an
anu lie Ilitl DtllGNG IildG
/ Legislature in framing it meant any such
| construction as that put upon it by the at
| torney for the defense. He said that ifthe
/ court should hold that the law could be
/ applied in the manner suggested by Mr.
/ Johnson, it would simply mean that il
future, out Of a batch of gamblers ar
rested. only one could be convicted-that
| all of the others, no matter how guilty
could protect themselves by simply ap-
! pearing as witnesses iii the FIRST case
brought to trial.
Judge Catlin read the law over again
and then said he could see no help for il
that Mr.. Johnson's point was a good
one. and thedefendant was entitled to al
acquittal. Hethen called in the jury anC
| instructed them that it was their duty t.
| free Brown. They did so.
BY this turn of affairs, George Blan
chard, the owner of the game" at which
Moore lost his money, will also be givel
! his freedom.