delivered the opinion of the court.
The defendant appeared before the grand jury of Greene county under subpoena, at the October term, 1874, of the circuit court of said county, to testify as to violations of the laws to suppress unlawful gaming. He was regularly summoned by the grand jury under the inquisitorial powers conferred by statute- upon that body, to inquire generally as to said offense, and to *90make presentment thereof upon the testimony of witnesses summoned and examined before them. The defendant was asked the question if he knew of any persons playing at cards for a wager within the last six months in said county. The question was not in proper form, but was not objected to on this account. Code, sec. 5088. The defendant, however, refused to answer upon the ground | that if he make any disclosures upon the subject, he would he obliged in criminating others, also to criminate himself. He was then brought before the court, and the statute was read to him which exempts witnesses from prosecution for offenses as to which they have given testimony before the grand jury. The defendant still refused to-answer, and thereupon the court pronounced judgment of imprisonment upon him for thirty days in the county jail.
The inquisitorial power as to violations of the laws to suppress gaming was first conferred upon the grand jury in this State by 'the act of 1825, ch. 5, see. 2,. which required the grand jury to send for witnesses whenever they or any of them suspect a violation of the laws against gaming. Code, sec. 5087. The vice was of such general prevalence, and so often baffled detection because of the fact that gamblers and persons haunting gaming houses, could alone, as a general thing, give information thereof, the Legislature in its anxiety to extirpate the vice, passed the act of 1829, ch. 31, sec. 2, and 1841, ch. 5, sec. 2, which forbade the indictment or prosecution of any witness for any offense as to which he has testified before the grand. *91jury. Code, see. 5089. This enactment was intended expressly to obviate the constitutional inhibition against compelling a witness to criminate himself. The language of our State constitution is, that he shall not be compelled to give evidence against himself. Art. 9. That of the Federal constitution is, that he shall not be compelled in any criminal case to be a witness against himself. Con. U. S., art. 5, Am. The sense of these provisions as we understand them is embodied in the language of the common law writers upon the subject as thus reiterated in 1 Phil. Ev., 206: “the law is that a witness shall not be compelled to answer any question which subjects him to a penalty or punishment, or criminal charge.” The provision of the constitution in this respect is but an affirmance, says Mr. Story, of a common law privilege. But it is of inestimable value. “It is well known,” he continues, “that in some countries, not only are criminals compelled to give evidence against themselves, but are subjected to the rack or torture in order to procure a confession of guilt.” 2 Story Con., sec. 1788. Now, the statute in question cannot be properly denominated a statutory pardon, because the Legislature has not the power to pardon public offenses. But they- have complete power as to the creation and punishment of public offenses, and may create new ones or abrogate old ones at pleasure, if there be no constitutional i-n-hibition to the contrary. Having thus the supreme control of the police powers of the State, it was certainly competent for the Legislature to pass such laws-as might be necessary to enforce them with energy *92and vigor. The exemption of the witness from prosecution for any offense whereof he gives evidence before the grand jury was, as to him, an abrogation of the offense. He could neither be accused by another nor could he accuse himself, and therefore he could not criminate himself by such testimony. The answer to the question did not subject him to “any penalty or punishment or criminal charge/’ because he could not be lawfully arraigned or accused of the matter whereof he testifies. It results that the judgment must be affirmed, with the modification that the defendant be imprisoned for thirty days, or until, if again called by the grand jury, he agrees to answer the question when propounded in legal form. Code, sec. 3823. It is insisted by the Attorney General that the contempt being committed in presence of the court, the defendant had no right of appeal from the judgment. How this may be we do not undertake now to decide, as the main question is decisive of the case.
With the modification indicated, let the judgment be affirmed.