Opinion
Hearing Granted by Supreme Court Oct. 13, 1938
COUNSEL
W.I. Gilbert and James B. Fredericks, both of Los Angeles, for petitioner.
Buron Fitts, Dist. Atty., and A.H. Van Cott, Deputy Dist. Atty., both of Los Angeles, for respondent.
OPINION
CRAIL, Presiding Justice.
This comes before us on writ of habeas corpus, the petitioner claiming that he is imprisoned and illegally deprived of his liberty for the following reasons. The facts are admitted.
Westy Petraeus, Jr., was charged in an information filed by the district attorney with the crime of violation of section 337a, subsection 2, of the Penal Code. Margaret Petraeus was charged in another and different information with violating the same section at the same time and place. The case of Margaret Petraeus came on for trial and after the People rested she called petitioner to testify and he did thereupon testify concerning matters of which he was charged in the information against him. Thereafter petitioner was placed on trial and convicted of the violation of said section against the objection of petitioner that the court was without jurisdiction to try him as petitioner had gained immunity to such prosecution by virtue of section 334 of the Penal Code. The prosecution resulted in the conviction of petitioner and he is now held by the sheriff under order of the court.
The sole question before us is this: Does the immunity of section 334 of the Penal Code apply to a witness who testifies concerning the defense of a defendant so charged? Said section reads as follows: "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 first two words of this section give an answer to the proposition here presented, and it follows that any person, whether the person was called by the People or by the defendant, is a qualified witness under this section and is granted immunity under this section for any offense concerning which he testified. In re Williams, 127 Cal.App. 424, 16 P.2d 172. In this case we find the appellate court referring to "any witness" called in the gaming cases as being a person to whom immunity under section 334 of the Penal Code extends. See, also, In re Critchlow, Cal.Sup., 81 P.2d 966.
The attorney-general contends that the statute should be taken as if it read, "No person called by the District Attorney." But against this we have the long line of cases on statutory construction which hold that the courts must not act as judicial legislators, but must interpret the statutes as they are written.
The courts are without power to rewrite a statute so as to make it conform with the presumed intention of the legislature. In re Weisberg, 215 Cal. 624, 12 P.2d 446; Estate of Barnett, 97 Cal.App. 138, 275 P. 453. A cardinal rule of interpretation is that a statute free from ambiguity and uncertainty needs no interpretation. Merkley v. Williams, 3 Cal.App. 268, 84 P. 1015; German Savings & Loan Society v. Aldrich, 5 Cal.App. 215, 89 P. 1063. The district attorney may protect the People by charging all defendants concerned in any one offense in one information.
The sheriff is directed to release the defendant.
We concur: WOOD, J.; McCOMB, J.