I concur with Judge Christian in the opinion that the indemnity afforded the witness in prosecutions for-gaming, by the 20th section of chapter 195, Code of 1873,. is not extended to witnesses in prosecutions for violation of the laws against lottery dealing. Upon that ground I think the witness in this ease would not be compelled to answer the question asked him by the attorney for the Commonwealth.
If this were a prosecution for unlawful gaming, as defined by our statutes, I think the witness would be bound to testify, for he is fully protected by the provisions of the 20th section already adverted to. It is very true I concurred with the majority of the court in Cullen’s case, 24 Gratt. 624,, but the question, whether the legislature may not compel the witness to answer by affording him ample indemnity, was left undecided in that case—p. 635. I -wish further to-say, that subsequent reflection has led me to entertain considerable doubt of the correctness of a good deal that was said in Cullen’s ease; and if the occasion occurs, I feel myself at liberty to reconsider the whole subject.
Upon the other questions discussed by Judge Christian— how far the answer of the witness is conclusive upon the court—there is a great diversity of decision. 'Upon this-subject I am not prepared to express any decided opinion; and as we are not required by anything in the present, case to lay down general rules, I am not willing to attempt it. No suggestion is made here that the witness was contumacious, or that his answer would not tend to criminate him.
The learned judge of the hustings court doubtless thought the witness protected by the statute, or by the assurance of the Commonwealth’s attorney. Whilst I am compelled to> differ with him, I think he was right in having the question settled by the appellate court.
*903Burks, J.In the view I take, it is not necessary in the case before ns to decide whether the construction of the 8th (now 10th) section of the Virginia bill of rights by this court in Cullen’s case should be adhered to in all its length and breadth. Passing by, therefore, what is said by Judge Christian in reference to that case, and the doctrines supposed to be affirmed by it, I concur in the residue of his opinion, and in the judgment of reversal to be entered.
The judgment was as follows:
This day came again as well the plaintiff in error by his counsel, as the Attorney-General on behalf of the Commonwealth, and the court, having maturely considered the transcript of the record of the judgment aforesaid, and the arguments of counsel, is of opinion, for reasons stated in writing and filed with the record, that the plaintiff in error under the law had the right to decline to answer the interrogatory propounded to him by the attorney for the Commonwealth of the said hustings court of the city of Eichmond, and was therefore guilty of no contempt of court in so declining, and that the judgment of the said hustings court is erroneous.
Therefore, it is considered by the court here, that the said judgment be reversed and annulled, and that this cause be remanded to the said hustings court, with instructions to allow the plaintiff in error his privilege of refusal to answer, if again claimed, on the trial of the party accused. "Which is ordered to be certified to the said.hustings court of the city of Eichmond.
Judgment reversed.