In Re Petraeus

[580]

SHENK, J.

The question for determination in this proceeding is whether one who has given self-incriminating testimony as a witness in the defense of another on trial for the crime of gaming, may invoke the immunity provided by section 334 of the Penal Code.

Margaret Petraeus and Westy Petraeus, Jr., were charged by separate informations with violations of section 337a. subdivision 2, of the Penal Code. Margaret Petraeus was tried first. On her trial she called Westy Petraeus, Jr., as her witness. Without claiming the constitutional privilege against self-incrimination, he gave testimony on behalf of Margaret Petraeus which implicated him in the commission of the crime with which he was charged. The jury in the trial of Margaret Petraeus failed to agree upon a verdict. Upon his own trial, Westy Petraeus, Jr., claimed immunity by virtue of the provisions of section 334 of the Penal Code, but this was denied. He was convicted and thereupon commenced the present proceeding to obtain his release from custody, basing his petition for the writ of

habeas corpus

upon the same claim,

Section 334 of the Penal Code reads: “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.”

The petitioner relies on the literal language of this section and on a statement in the case of

In re Williams,

127 Cal. App. 424 [16 Pac. (2d) 172], referred to in

In re Critchlow,

11 Cal. (2d) 751 [81 Pac. (2d) 966], in support of his claim.

In the opinion in the Williams case it was said at page 431: “What the statute means is that a witness called to testify to facts concerning or relating to the offense of gaming can safely testify for the reason that he is forever free from the possibility of punishment for any crime in the proof of which such testimony would be material. Such a construction is literally what the statute says, and it preserves the whole meaning and intention thereof. Such construction brings the statute within the rule that it must be coextensive with the Constitution. . . . Any witness who testifies to facts concerning or relating to prohibited gaming is immune from pun