Wm. H. Maynard, Assistant Attorney-General, for the State.

The State has the right to appeal in this case.

"The State or any municipal corporation may prosecute an appeal from a judgment of the circuit court in a criminal cause in the following cases: (2) from a judgment actually acquitting the defendant where a question of law has been decided adversely to the state or municipality; but in such case the appeal shall not subject the defendant to further prosecution, nor shall the judgment of acquittal be reversed, but the Supreme Court shall nevertheless decide the question of law presented."

Section 19, Code of 1930.

The court, in construing a statute, will assume that the Legislature employed the words of the statute in their usual and most common sense.

State v. Newman Lbr. Co., 67 So. 215, 103 Miss. 263; Town of Union v. Ziller, 151 Miss. 467, 118 So. 293; Warburton Supply Co. v. City of Jackson, 151 Miss. 503, 118 So. 606; Chattanooga Sewer Pipe Works v. Dumler, 153 Miss. 276, 120 So. 450.

The word "acquittal" is not confined in its meaning to a judgment in favor of defendant after a trial on the merits and facts of the case, but may also have the broader signification of a discharge by judgment rendered for other reasons.

Junction City v. Keeffe, 40 Kans. 275, 19 P. 735; Dolloway v. Turrill, 26 Wend. 383; Morgan County v. Johnson, 31 Ind. 463.

"Acquitted," as used in a criminal proceeding is synonymous with the word "discharged."

Teague v. Wilks, 3 McCord, 461; Sherman v. Sherman, 23 S.D. 486, 122 N.W. 439; State v. Keerl, 85 P. 862, 33 Mont. 501.

While our own court has never expressly stated that the sustaining of a plea of immunity is acquitting in the language of Section 19 of 1930 Code, it has clearly shown that this is the definition intended. Our court has never had occasion to consider the immunity statute here presented. (Sec. 5340 of the 1930 Code). But has decided many cases arising under the Intoxicating Liquor Immunity Statute. (Sec. 1991, which is with reference to testimony given before a grand jury or before any court on intoxicating liquor violations.)

Griffin v. State, 127 Miss. 315, 90 So. 81; Sudduth v. State, 136 Miss. 742, 101 So. 711.

In all of the other cases arising under Section 1991 of the 1930 Code and the former statutes containing the same subject matter, the Supreme Court has dealt with the plea of immunity as a plea in bar and has approved instructions to the jury that if the jury believed certain facts with reference to the immunities that said jury should acquit the defendant on the merits of the case.

Lucas v. State, 130 Miss. 8, 93 So. 437; Hosey v. State, 136 Miss. 5, 100 So. 577; Wall v. State, 105 Miss. 543, 62 So. 417; Thornton v. State, 143 Miss. 262, 108 So. 708; Evans v. State, 157 Miss. 645, 128 So. 737.

We gather from the authorities in cases here cited that the judgment of the lower court acquitted defendant within the meaning of Section 19 of the 1930 Code.

We respectfully submit that the State has a right to appeal in this case and that this appeal should be entertained by this Honorable Court.

The lower court should have overruled appellee's special plea of immunity.

It is appellant's contention that appellee is not entitled to immunity under Section 5340 because of this testimony for the reason that, first, he procured and contrived himself to be examined as a witness (which would expressly take him out from under the operation of Section 5340) and, second, that the testimony which he gave on February 18, 1936, was not incriminating.

We submit that two things are necessary under Section 5340 before a person shall be granted immunity, to-wit: He must testify without procurement or contrivance, and, second, he must be required to testify.

It is our contention in this case that appellee's testimony of February 18, 1936, before the Legislative Investigating Committee, was given by procurement or contrivance on appellee's part and that he was not required to testify.

Lucas v. State, 130 Miss. 8, 93 So. 437; Thornton v. State, 143 Miss. 262, 108 So. 709; Evans v. State, 157 Miss. 645, 128 So. 737.

Certainly, as this court has clearly indicated, in the Thornton and Evans cases, supra, that even under Section 1991, which contains no exceptions as to testimony at instance of or by procurement of defendant, it would be inclined to hold that under Section 5340, which contains these express provisions as to procurement and compulsory testimony, appellee is not entitled to immunity for the testimony which he gave before the Committee on February 18, 1936. The first portion of Section 5340 states that to entitle a defendant to immunity from prosecution he must be examined as a witness "without procurement or contrivance, on his part."

Of course, to ascertain whether a person has contrived or procured himself as a witness, it is necessary to judge his intent by his acts, drawing from those acts the conclusions warranted.

The rule is that a man will be presumed, in the absence of evidence to the contrary, to intend the necessary or the natural and probable consequences of his voluntary act.

16 C.J. 81; Barcus v. State, 49 Miss. 17, 19 Am. Rep. 1; 1 Bishop's Cr. L. (8 Ed.), sec. 735.

Appellee had a constitutional right not to be made to testify against himself. The State passed Section 5340 making him testify, but giving him immunity if he were made or required to testify. In order to avail himself of this privilege his testimony must be compelled. If he voluntarily, at his own instance, testifies, Section 5340 has no application for even without said section he could waive his constitutional rights not to be a witness against himself.

Brown v. State, 173 Miss. 542, 158 So. 339; U.S. v. Commissioner of Immigration, 273 U.S. 103, 71 L.Ed. 560; Powers v. U.S., 223 U.S. 303, 56 L.Ed. 448; U.S. v. Murdock, 284 U.S. 141, 76 L.Ed. 210.

The sole purpose of the immunity section is to insure a defendant the same rights he had under the Constitution and no more.

Brown v. Walker, 161 U.S. 591, 40 L.Ed. 819; Glickstein v. U.S., 222 U.S. 139, 56 L.Ed. 128.

Another reason why appellee can claim no immunity for the oral testimony given on February 18, 1936, is that that testimony did not incriminate him.

Heike v. U.S., 227 U.S. 131, 57 L.Ed. 450; Arndstein v. McCarthy, 65 L.Ed. 138; Hosey v. State, 136 Miss. 5, 100 So. 519; 3 Wigmore on Evidence, sec. 2881; Brown v. Walker, 161 U.S. 591, 40 L.Ed. 819.

Appellee is entitled to no immunity under Section 5340 because of the circumstances surrounding his books.

Our contention that appellee is not entitled to immunity under Section 5340 because of his books getting before the Committee may be summarized as follows: first, the only immunity allowed by said section with reference to books is that said books shall not be "competent evidence in any criminal proceedings against such witness" and that the State is not here trying to use said books as evidence; second, appellee was not sworn and examined concerning these books, as required by the statute; third, appellee furnished said books in order to procure and contrive immunity; fourth, appellee's books were not compelled to be produced before the Committee as required by Section 5340.

Wilson v. U.S., 221 U.S. 361, 55 L.Ed. 771; 38 R.C.L., sec. 13; 71 C.J., Witnesses, sec. 899; Sherwin v. U.S., 268 U.S. 368, 69 L.Ed. 1001; Counselman v. Hitchcock, 142 U.S. 547, 35 L.Ed. 1110; Arndstein v. McCarthy, 254 U.S. 71, 65 L.Ed. 138; Emery's case, 107 Mass. 172, 9 Am. Rep. 22.

The plea of immunity should have been tried by a jury.

Griffin v. State, 127 Miss. 315, 90 So. 81; Lucas v. State, 130 Miss. 8, 93 So. 437; Hosey v. State, 136 Miss. 5, 100 So. 519; Turnage v. State, 134 Miss. 431, 99 So. 9; Ryan v. State, 136 Miss. 587, 101 So. 381; Thornton v. State, 143 Miss. 262; Evans v. State, 157 Miss. 645, 128 So. 737.

The lower court erred in not allowing the State to cross-examine appellee.

An accused who voluntarily takes the stand in his own behalf, thereby waiving his privilege, may be subjected to cross-examination concerning his statements.

Powers v. U.S., 223 U.S. 303, 56 L.Ed. 448; Sawyer v. U.S., 202 U.S. 150, 50 L.Ed. 972; Raffel v. U.S., 271 U.S. 494, 70 L.Ed. 1054; Akroyd v. State, 107 Miss. 51, 64 So. 936.

Means Johnston, of Greenwood, W.E. Morse, of Jackson, and Barbour Henry, of Yazoo City, for appellee.

The two appearances gave immunity. We say, notwithstanding the bad faith shown by the committee, in attempting to refuse to permit Billups to testify on March 18, 1936, in response to the two subpoenas duces tecum, that he has substantially complied with all the provisions of Section 5340 of the Code of 1930, in that on February 18, 1936, appellee appeared before the committee and testified at length concerning the details of his business, and that all the books of the various corporations, including his own, were kept by him in Greenwood, and he was the custodian of the books; and on March 14th, in response to a subpoena duces tecum and the agreement made by his counsel with the committee, the books were delivered to the committee, who had possession and custody of them until the trial of his case in August, 1936, at Belzoni, Mississippi. Notwithstanding that, the committee, after obtaining the books on the subpoena duces tecum and agreement of his counsel, attempted to refuse to let him testify on the following Monday, in pursuance of said subpoena duces tecum and said agreement. Notwithstanding the bad faith shown by said committee in refusing to permit him to testify, we say that the terms and provisions of Section 5340 were strictly complied with, and appellee is entitled to immunity. Section 5340 provides that "A person sworn and examined as a witness before either house, without procurement or contrivance on his part, shall not be held to answer criminally or be subject to any penalties of forfeiture for any fact or act touching which he is required to testify," etc., and we contend that his testimony given on February 18, 1936, and the obtaining of his books under compulsion on March 14, 1936, is a substantial compliance with the statute; he has done both, he testified on February 18, 1936, and delivered his books on March 14, 1936, and is fully entitled to immunity.

Lucas v. State, 130 Miss. 8, 93 So. 437; Evans v. State, 157 Miss. 645, 128 So. 737; Hosey v. State, 136 Miss. 5, 100 So. 577; Turnage v. State, 134 Miss. 431, 99 So. 9; Thornton v. State, 143 Miss. 262, 108 So. 709; 8 R.C.L. 125, sec. 101; Kennington v. Hemingway, 101 Miss. 259, 57 So. 809; 39 L.R.A. (N.S.) 541, Ann. Cas. 1914B 392; 59 C.J. 979, sec. 579 (3).

Of course, if a witness, through contrivance, or by scheme, trick, or design, or in bad faith, appears or causes his appearance before the Investigating Committee, for the express purpose of disclosing his crimes, to secure immunity, he cannot profit by his own wrong, and is not entitled to immunity, and the constitutional guaranty would not protect him; but if he appears in good faith, voluntarily or otherwise, and is required to testify, he must be granted immunity.

U.S. v. Richmond, 17 F.2d 28; Lucas v. State, 130 Miss. 8, 93 So. 437; Thornton v. State, 143 Miss. 262, 108 So. 709; Turnage v. State, 134 Miss. 431, 99 So. 9; 12 C.J., page 634, sec. 227 (3), and page 638, sec. 231 C; Counselman v. Hitchcock, 142 U.S. 547, 35 L.Ed. 1118.

It will be observed that the provisions of Section 5340 are broader than the provisions of Section 1991, in that if a person is sworn and examined as a witness before either house, without procurement or contrivance, he shall not be held to answer criminally for any fact or act touching which he is required to testify.

We, therefore, submit that counsel's summary that appellee testified by his own procurement or contrivance, and was not required to testify; and the further fact that the statute does cover testimony given at the instance of the defendant, and the further fact that none of the defendant's testimony given by him before the Investigating Committee was incriminating, is not well taken, and that appellee is entitled to the full benefit of all of the provisions of Section 5340 of the Code of 1930.

Counsel for appellant contends that the production of appellee's books, under the subpoena duces tecum, without having testified as a witness concerning said books, does not entitle him to immunity, but that the only immunity he is entitled to by the compulsory production of his books, is that said books shall not be used against him in a criminal prosecution, and he cites in support of his contention, the case of Counselman v. Hitchcock, 142 U.S. 547, 35 L.Ed. 1110; Arndstein v. McCarthy, 254 U.S. 71, 65 L.Ed. 138; Emery's case, 107 Mass. 172, 9 Am. Rep. 22. We do not think there is any comparison in the statutes construed under these cases and the one at bar.

In order for Section 5340 to be held constitutional, it must be construed to mean that where books of accounts are produced by the witness in response to process of the Legislature or its committee, they speak or testify against the witness just as his own language would do. It must give absolute immunity against any criminal charge, and also protect his property from being "subject to any penalty or forfeiture for any fact or act touching which he is required to testify."

Brown v. Walker, 161 U.S. 591, 40 L.Ed. 819; Boyd v. U.S., 116 U.S. 616, 29 L.Ed. 746; Emery's case, 107 Mass. 172; Arndstein v. McCarthy, 65 L.Ed. 138; Foster v. People, 18 Mich. 266; People ex rel. Taylor v. Forbes, 143 N.Y. 219, 38 N.E. 303; Reg. v. Garbett, 2 Car. K. 474, 1 Den. C.C. 236, 2 Cox, C.C. 448; Gouled v. U.S., 255 U.S. 298, 65 L.Ed. 647; Tucker v. State, 128 Miss. 211, 90 So. 848; Boyds v. U.S., 29 L.Ed. 746; Weeks v. U.S., 58 L.Ed. 652; Silverthorn v. U.S., 64 L.Ed. 319; Amos v. U.S., 65 L.Ed. 654; Falkner v. State, 134 Miss. 253, 98 So. 691.

The rule is well settled that constitutional provisions designed for the protection of persons are to be liberally construed.

Boyd v. U.S., 116 U.S. 616, 6 Sup. Ct. 524, 29 L.Ed. 746; Gouled v. U.S., 255 U.S. 298, 41 Sup. Ct. 261, 65 L.Ed. 647; Thompson v. Grand Gulf R.R. Banking Co., 3 How. (Miss.), 240, 34 Am. Dec. 81; Brien v. Williamson, 7 How. 14; State of Mississippi v. Bramlett, 47 So. 433; Thornton v. State, 108 So. 709, 143 Miss. 262.

All parties having consented to waive a trial by jury, and submit the plea to the judge, his finding on disputed facts is equivalent to a jury finding thereon.

Universal Truck Loading Co. v. Taylor, 172 So. 576.