State v. Andrews

82 Vt. 314 | Vt. | 1909

Munson, J.

Mahoney, the State’s witness, testified that the respondent took a bottle of whiskey from his pocket and gave him a drink. It was the theory of the defence, and the testimony of the respondent when he took the stand, that the respondent had no liquor with him, and that Mahoney was the one who produced the whiskey and did the giving. Respondent’s counsel undertook in his cross-examination of Mahoney to get some admissions in line with this theory, but the State’s attorney objected to his inquiries on the ground that th§ witness was entitled to protection, and the court excluded the testimony as evidence that would tend to incriminate the witness. The witness made no claim of privilege.

It is not necessary to inquire what the situation would have been if the witness had claimed the privilege of silence on the ground that his answers would tend to criminate him. The respondent was entitled to the benefit of the proposed examination if the witness was willing to answer, even if there were legal grounds on which the witness might have refused to answer. The privilege, if it existed, was strictly personal, and could be asserted by no one but the witness. The court might properly have instructed the witness as to his privilege, but could not exclude evidence material to the defence for the protection of the witness unless the witness claimed protection. No claim of privilege having been made by the witness, the exclusion of the testimony was error.

Exceptions sustained, judgment and sentence reversed and cause remanded.