Under the rulings made by this court in Higdon v. Heard, 14 Ga. 255, and Kneeland v. State, 62 Ga. 395, a witness before a grand jury investigating a charge of gaming preferred against another may be compelled to answer whether he has seen the latter play and bet at cards for money, in the county wherein the jury is sitting, within two years prior to the inquiry; and this is so although the testimony of such witness may relate to an act of gaming in which the witness himself criminally participated.
Judgment affirmed.
All the Justices concurring.Upon a review of the cases cited supra, four of the Justices of this court, Lump-kin, P. J., Pish, J., Cobb, J., and Lewis, J., are of the opinion that the decisions therein, to the effect above indicated, should be overruled ; but as this can not be done without the concurrence of at least five Justices, the doctrine of those cases must stand as good law, binding upon the entire court. Por this reason alone the four Justices herein named concur in the judgment.
F. A. Hooper, solicitor-general, cited: Higdon v. Heard, 14 Ga. 255; Kneeland v. State, 62 Ga. 395. The amendment to the constitution of the United States, under which the privilege in question is claimed, does not apply to the State courts. Thornton v. Lane, 11 Ga. 500; Fadelford v. Savannah, 14 Ga. 439, 499; Mitchell v. Cothrans, 49 Ga. 131; Hill v. State, 53 Ga. 473; Foster v. Jackson, 57 Ga. 206; Ga. B. Co. v. Cubbedge, 75 Ga. 322; Bishop, Stat. Crimes, § 35 b; Black, Int. Laws, § 144. Similar statutes have been held constitutional in other States: State v. Quarles, 13 Ark. 307; Cossart v. State, 14 Ark. 539; Pleasant v. State, 15 Ark. 649; Ex parte Rowe, 7 Cal. 184; Wilkins v. Malone, 14 Ind. 153; Bedford v. State, 115 Ind. 275; LaFontaine v. Underwriters Ass’n, 83 N. C. 132; People v. Kelly, 24 N. Y. 74; Peoples. Sharp, 107 N. Y. 427; Ex parte Buskett, 106 Mo. 602.