*1 fore, hold that the appeals court of has the
power to order a remittitur in FELA ac
tions. the granting Since of a remittitur questions as to the excessiveness of
damages are questions of fact made final in appeals, court of jurisdiction we lack
review holding. Impson v. Structural
Metals, Inc., 694, 487 S.W.2d (Tex.1972);
Pon Lip Gilliland, Chew v. 98, 398 S.W.2d
103 (Tex.1965).
The judgment appeals court of
affirmed. Darryl TAYLOR, Appellant, Texas, Appellee. STATE of 65286,
Nos. 65287.
Court of Criminal Appeals Texas,
En Banc.
June *2 arrival, Marilyn,
On been driv- ing, parked the car and motioned a man over. him Bug”3 called “June She looking “preludes” for some and Bug Stillman, any. Kenneth if he knew about June Dallas, M. asked appel- for did, he went to find his lant. indicated inside Finch, cousin, as Lee also known Eddy Wade, Keeton, Henry Atty., Stanley Dist. “Pun’kin,” soon be deceased. Martin Poole, Lenoir and Ronald Asst. Dist. group Pun’kin to the car and told the came Dallas, Attys., Huttash, Robert left, but he only preludin he had two Atty. Walker, and Alfred Asst. State’s he were. thought knew where some more Atty., Austin, for the State. with a went and returned He back inside as large was identified very man who told the Big Lawrence “Big Lawrence.” he had 30 more group in car that about OPINION them if and would preludin his house ride him a there. CLINTON, Judge. into and Pun’kin climbed Big Lawrence These are appeals from for convictions door Ponti- appellant’s the back seat of two murder and attempt obtained in murder ac beside was behind Rat who trial; single life were as- sentences Marilyn followed Lawrence’s directions sessed in each cause. There, Law- apartment Big an on Loomis. After rence exited car and went inside. I. minutes, came back about five Lawrence sufficiency support of the evidence to side and was headed toward the driver’s out verdict in the cause is murder when, Rat, according of the car challenged. pistol pointed “everybody it at pulled testified, in the back Rat “I tried seat.” 16, 1979, (The May Taylor On Gregory went push gun the back seat out and the in State’s main witness these causes and gunshot off.” He sustained a wound attempt) walking victim down He he chest.4 lost consciousness. When street when Gar- the car and up, jumped woke he stopped According rett pick up. there pavement. lying landed on the Taylor street name “Rat” be- —whose “around momentarily, got up he and ran “I bought gin cause am a thief” —he some three the corner down about two or bootlegger. and some Schlitz beer from a streets,” out. passed to a house and then ran The three then rode around in Rat, over According missing car, shooting preludin through drinking and inci- ring and a after the cash $100.00 Later, after Rat2 took a afternoon. dent. house, at his picked bath mother’s he was Mari- p.m. by appellant about 11:00 Everett testi- Dallas Police Officer R.W. around, radio lyn again. looking for more Riding partner fied he and his received 17, 1979 drugs, May headed for a 2:00 a.m. on ultimately dispatch three about the 1400 block Strip. shooting. club South Dallas called the On Sunset Ford, By trial, Marilyn ap- Bug’s Berry Jr. time of 3. June name Lee pellant married, though the status of their relationship un- at the time of offense is emergency Thirlby 4. Dr. testified that Richard clear from the admissible evidence. repair surgery performed on “Rat” to began artery; following night, patient confusing Gregory Taylor 2. To avoid with the air, losing another so amounts massive appellant, we will refer to the former emergency procedure in which was conducted name, “Rat;” consistency, street we shall repaired. a hole his trachea call all characters their street names after initial introductions. Road,5 cavity lodging chest Maryland partner exiting Everett once, Rat found who had been shot his head right chest muscle. its
swollen twice normal size. After left bullet entered the front The other putting ambulance, Rat into an officers and exited armpit at about the chest muscle proceeded apartment Loomis about 4 above and to cm. *3 dispatch shooting where a a gone about had entrance wound. they Mary- before were sent asked how mobile Dr. was not Gilchrist arrival, land Road. a body On found might might long he the victim be or how top apartment at the of the stairs at the injuries, though sustaining live after such complex. (Pun’kin) Eddie Lee Finch had cause testify he such wounds would not did already been pronounced Appellant’s dead. Rat, bleeding. Like a lot of external headlights Pontiac was with the on found when money person had no on deceased parked and “the front open” door ... though testi- police, found witnesses by northbound in the southbound lane sock. money had some in his fied he earlier yards 3700 block of South Lamar —about from the body According deceased. set examination, On direct Everett, about three people different five question in which hypothetical “told had heard the gunshots [him] door car and the individuals in a two looked out and three people running saw back attempted to out of the deceased parked from vehicle that was in the 3700 side; testi- passenger seat on Gilchrist ...,”6 block South Lamar woman with the wounds fied it would be consistent two men. The car was as appel- identified person he was shot sustained that lant’s. passenger front in the sitting in the seat range. side8 also testified at close He
Ballistics tests determined that Rat and relationship the two entrance Pun’kin were shot between both with the same .38 body at pistol. through caliber “they go No blood was wounds —that appel- found car. Marilyn’s lant’s mean that fingerprint angle” found the same —would on a Schlitz beer can recovered from the victim was in more high likelihood left front floorboard of the and Rat’s car as the shooter. position or less the same fingerprints were lifted hard from a hat the soot opined Gilchrist further which was found between the back seat and indicated the deceased was wounds the back windshield. shot. running the time he was Gilchrist, M.D., Thomas F. County Dallas crossexamination, defense counsel On Examiner, Assistant Medical testified he hypothet in which the deceased suggested a performed an autopsy deceased seat, left front person “a in the shot had sustained two gunshot wounds at virtu- wheel,”9 he “tried steering as behind the ally point range: blank from two to five right side.” Gilchrist conceded get out the inches.7 The fatal bullet entered left car persons the other in the side just waist, back above the shooting, though some could have done forward, up, traveled right, and to lodg- likely than others. more muscle; ing in chest passed this bullet ap establishing the evidence through kidney, left the inferior While vena cava, murdering the deceased juncture liver at the pellant’s guilt the left exist right lobes, gaps right lung tenuous, large unexplained and the seat, sitting passenger person 5. Everett testified this location was about one 8. The the front city apartment testimony, block from according on Loomis. all information No number shots or established 9. All the uncontroverted fleeing direction of the individuals contained Marilyn driver’s seat of was in the Garrett in the record. testimony regarding 7. The medical Rat was range. too was shot sequence events, Tay- we believe a over Garrett have rational brought trier of fact lor into the courtroom and identi- ap- could have found fied rested pellant by witnesses.10 After intentionally Eddy caused Lee that Rat testimony adduced Finch’s beyond death a reasonable doubt a 9 mm carry been known automatic under charge of the Court. Griffin v. pistol,11 the called Marilyn defense State, 614 (Tex.Cr.App.1981); S.W.2d 155 Taylor to the Asked to state stand. Jackson Virginia, 443 U.S. 99 S.Ct. name, replied “Marilyn Gar- 2781, 61 (1979). L.Ed.2d 560 rett.” Then: Most compelling is the ballistics evidence “Q: Marilyn, consulted deceased Rat were shot with your lawyer today? here the same weapon; weapon was placed A: Yes. hand of testimony. Rat’s here to- Q: desire Clearly, revolver; Rat did not have the .38 *4 testify today? Do to here day? you want Big not Lawrence was near the car the A: No. time of fray the and the evidence indicates pass the wit- We counsel]: [Defense it a who, was friend deceased like the ness.” deceased, unacquainted with the others jury At prosecutor’s request, the the- Through of process a elimina- the the removed from courtroom. He tion Garrett re- court: main as possible perpetrators of the mur-
der.
he has
Under the trial
that since
charge,
my
court’s
the
“It
is
jury,
the
presence
her in the
of
authorized to convict
if
called
have
can
He could
they
that I
cross-examine.
found he
promote
intended to
or assist
jury.
the
presence
outside the
of
done this
committing
solicited,
the murder and
en-
faith
call her
obviously
It most
bad
is
couraged, directed,
attempted
aided or
going
I
knowing
that
am not
the stand
aid another in its commission.
To
her.
be allowed to cross-examine
whole,
Taken as a
evidence
not
the
testi-
that we
come
some
imply
could
support any reasonable conclusion other
exculpatory to
mony that would be
than
appellant,
that
a
either alone or as
that
(?) ],
impression
that is the
State [sic
party,
in question;
committed
offense
made,
I
and I think that
should
ground
attacking
accordingly,
of
* *
to cross-examine.
opportunity
sufficiency
support
an-
I wouldn’t even
[Defense counsel]:
conviction
overruled.
murder
is
faith,
bad
Your
question
swer a
Honor,
right
has every
but
this witness
II.
not to
since she
co-defendant
appellant complains
In both causes
My
right
has every
the case.
client
trial court’s
ex-
permitting his coindictee’s
if he so
to the stand
desires12
call her
trajudicial
placed
statement
to be
not
as a co-defendant
right
she also has
the jury.
so
I
stated.
testify, and
think
context,
the issue in
Placing
recognize
record
I
THE
Now
COURT:
during
reflects
to call a witness
the State’s case
of the defendant
chief,
defend-
permitted
rights
twice
I
prosecution
recognize
course,
12.This,
questionable
Appellant
highly
objected
under
both times
on the
State,
by “bringing
this man’s wife into the
See Victoria v.
circumstances.
trying
Rodriguez
courtroom ...
the State of Texas is
(Tex.Cr.App.1975);
S.W.2d 919
something indirectly
do
directly.”
cannot do
(All
(Tex.Cr.App.1974).
your client is desiring will put lege, THE COURT: on the [Witness’s her not to testify, as she ant. brought in Court. [*] proper manner, [sic] I am procedure. the middle in this you [*] going to require you to do it in attorney]: an opportunity Counsel, [*] I realize that since this has been to invoke the : n if situation, is a you to brush sjc co-defend- I you desire, wasn’t but if privi- were I the ear Eddy Finch out at the “had a prosecutor facts This that it Logan,” of his A: “in the front type of guy big I refuse died," might hand,” had revolver,” questioning that he was witness had said in front of the Sunset gotten the Preludin and took them incriminate me.” that appellant that she and he “ran after to answer on the seat with had before the continued until “going “pointed [her],” “talked to rob grounds a pistol Strip quite she, clear on the and that relationship dope peddler,” appellant, two parties “Pun’kin, insofar as the privilege big is con- and the other dude went Rat cerned. I you talking assume are apartment on Loomis to over to the the husband and wife privilege, and the some Preludes.” only thing that I knew for sure was that redirect, defense counsel elicited from On they were co-defendants in this case. So could not read or write witness you will me a few minutes [to charged with the same that she may review so do that I that.” law] husband. invoked offenses as her She recess, ten minute witness’s Fifth when defense counsel Amendment statement, attorney stated he her, you signed had consulted with his “so if asked you you signing, wouldn’t know what pounded by prosecution or the de- and, you?,” sign- “Do remember fense which was not answered such ing a statement police before a officer?” witness. cannot con- Specifically, you any as asserted in the sider facts recross, On prosecutor only, asked prosecutor questions propounded by the “Do recall Investigator read- Robinson Taylor."14 ing sign- a statement to you prior your ing?,” to which to re- the witness refused contends, we Appellant now as under- spond might on the it incrimi- it, clear stand that once became nate her. State’s crossexamination extrajudi- Both sides rested. The entire against selfin- would invoke cial was admitted the record crimination, for the trial court request of defense counsel.13 permit to continue over if it can ar- ap- objection;15
The trial that even judge jury, instructed the sponte: door,” sua parently gued “opened the defense re- patently improper response solely “... verdict must be based [Y]our sulting in contamination with testimony witnesses any or court. “facts” not admissible from appeared open testified admitted and, pro- preju- You cannot manifest perforce, consider other source 13.The content of that several times. James then turned the oth- statement reads: pistol guy, pointed er at him took the day May, my moving “One I was out of preludes Punkin out of hand. climbed Rat, (Gregory apartment on Peak Street. pulled out the out of the window James Lynn Taylor) Darryl Taylor and James parking James me lot. The car died and helping me move. We were in James’ I to run. and ran and left Rat a little James green day It Pontiac. Later ways from the car because James had shot dark, around Rat told ts he wanted [sic] run.” mistake he couldn’t preludes. to score some I knew that he going try dope because he rob a dealer However, during prosecutor’s argu- final any money carrying a didn’t have and was ment, following occurred which forms pistol. big pistol. He had automatic grounds both causes: basis error in big had a revolver. Rat said earlier *6 Marilyn? do we about “What else know brother, Darryl Wayne Taylor, he and his had Marilyn only question The answered hi-jackin dope been how dealers and that was you one that can read and write. The getting high. had been down We drove no, again and once she chose to answer was stopped and the Sunset on Oakland Street at implication they trying the you to leave with are Logan got Strip St. James out of car officer, police is this Investi- (Eddie there Dallas guy ‘punkin’ talked to a I know as and Robinson, gator go and take a would out Finch). any Lee He asked Punkin if he -just voluntary statement from preludes. Punkin told he didn’t someone— say paper piece of her and get shove a of in front he he some. but knew where could here, you sign Strip got this. Punkin went inside the and another Honor, I got will ob- in Your [Defense counsel]: and both dide came back [sic] nothing ject guy in evidence to that. There is the car. I eho other don’t know [sic] concerning any weighed written statement. There was but he 6'1" and was about pounds. nothing they got the car in evidence about a written state- about Before in Garrett, thought Marilyn I told Rat he Punkin and ment and will guy try going the other rob them. to it. they got in, guy objection. me the other told THE I will COURT: overrule way go apart- you again, may and I drove some con- Once [Prosecutor]: got policeman just ments on Loomis. When we there said. a Dallas sider what I Is got apart- all just going men out and went into the shove statement a blank They gone reading ments. five minutes her? I believe she there without it to and came back car. me to you to the James told I can write. she lied to read and believe over so Rat you scoot he could drive. Punkin and when she told that.” got gy in the back The said seat. other [sic] going Appellant stay get he was there in. not contend trial court and didn’t does by privi- glanced forcing I invoke the around to the back seat and Punkin erred witness to Ray scuffling. say, lege jury I had been made heard Rat before the when it [sic] me, going get jury’s presence him he’s 'shoot to shoot I can’t known outside the my gun out.’ do James turned around and fíred so. dice; and finally, appellant “Q: was denied you say you Now shoved of crossexamination because against [appellant], you is that what seat prosecutor interjected content saying? are the statement was not subject a witness I saying pushing A: I was that was crossexamination, and the os- witness who trying back of the seat tensibly gave the in- hearsay statement gun and hit me The went off voked her Fifth Amendment privilege. too. Q: not “any State retorts that error” was know whether or waived appellant’s objection aiming because at you? James was specific neither nor timely; if not yeah, A: He could hit me. have — waived, any error is not reversible because Q: You don’t know whether or not in calling action the witness and shooting at or not? eliciting response that she did not wish If shooting A: he had been to testify prejudicial “was State” Pun’kin, pointed he would have appellant not should benefit from in- way.” other action; by vited prejudicial own Appellant “knowingly was accused finally, interjection that if of the content of shooting” intentionally Gregory Taylor with the coindictee witness’s statement was er- commit specific “the the offense intent ror, it was cured the trial court’s instruc- of murder.” it, tion to disregard cured, not jury once the heard that say, Needless to error was harmless beyond reasonable investiga- an fray eyewitness to it, doubt because without the State’s case Rat,” tor the State’s case appellant “shot persuasive. less attempt charge was secure.
HARMLESS ERROR Moreover, supplying these facts no Taking the admissible State’s contentions in re provide, prosecutor verse order did not we first observe that could even there is no way seriously argue complete, much less fair rendition that the selections of the content ex- arguably statement which Taylor’s witness’ statement which were appellant guilt: according offered for the onerated of all consideration, was harmless. “shot Marilyn’s Pun’kin,” Rat, defense and he No one saw “shoot Pun’kin.” 13, ante, Rat” n. “shot mistake. [See No testimony explained hour lapse the 2½ complete content statement.] between the the group time left the Sunset Strip p.m. 11:30 time witnesses suggestion that introduction of these heard an undetermined number of supplied “shots” facts was harm- *7 2:00 approximately a.m. in the 3700 possible block less Neither was it is untenable. explained Loomis. No testimony jury’s any erase this critical “evidence” from gaps in the State’s case on an which an instruction by collective consciousness impartial jury could have particularly based reasona- when the disregard it —and appellant ble doubt “shot prosecutor, very Pun’kin.” in of that written violation course, Of prosecutor’s with the instruction, assertion of that the state- argued effect the fact that appellant’s Marilyn, wife told an inves- only by ment was not made tigator Pun’kin,” “shot knowingly intelligently reasonable was made doubt juror harbored 14, no doubt her. n. ante.] [See dispelled. WAIVER earlier,
As stated Rat testified on direct only that he shot “the gun turning when went left before only question merits, off” after he “tried to counsel push back seat is whether it, out.” On by inviting failing crossexamination this matter was waived pursued a timely grounds. bit or on specific more: to it
302
Appellant being questions avoids of the was not asked which would complaint forcing her, claim the yet State’s witness to incriminate State necessarily privilege against selfincrimination in the to direct her to never asked trial court presence, no is mani forcing doubt because it is that answer. The obvious reason calling that his her fest conduct in witness to would have violated answer eliciting her lack of invit 38.11, “desire” to re and insured Article V.A.C.C.P.16 response. fact, appears ed the In it or appellant objected not. versal whether fully from the record that defense counsel (Tex. State, 209 Johnigan v. 482 S.W.2d See expected privilege State, State to elicit the v. 477 Cr.App.1972); Carabajal from the witness had no intention of (Tex.Cr.App.1972).17 640 S.W.2d objecting Clearly, thereto. any objection waived the witness’ invoca THE MERITS it by inviting tion of the both sum, expected neither In failing timely object. her to nor wanted the witness answer answer; thus, get was to Court,
But in this com intent sole (which extrajudicial plains—not jury parts answer before the witness’ inadmissi requires objection absolutely given)— before it is statement which was prosecutor’s purposes.18 but of the The in ble for all questions. creasing prejudicial deter impact and the circumstances, the Court Under similar mination of the to continue in has observed: a num that vein discernable after propounded “... should [N]o thus, questions ber of the posited; had been to be inad prosecutors know one, objected after the third “to this counsel missible, done, the circum for if it is line of questioning.” person trial are such that stances adequate We hold this the casé injured thereby, been may have n * * preserve the error under the circumstances If will be reversed. should State,
presented, Zillender v. 557 S.W.2d jury the get sought before (Tex.Cr.App.1977), 515 we believe this with contents of written conclusion is fact that fortified evidence, introducing same was it in trial court overruled it. [PJrosecuting ... ... improper State, whose are officers of attorneys Moreover, appel we agree cannot done, is justice to see that duty conduct in as he calling lant’s attempt they should never patently did “invited” the State to thrust to be inad they know inadmissible, hearsay obviously harmful missible.” on material trial. bearing issues into this It State, 364, (Tex. 365 v. 190 Lackey is true the State had a to crossexam- S.W.2d State, 79 quoting witness and her with com Short impeach Cr.App.1945) ine the 955, (Tex.Cr. 426, 958 evidence. See Mitchell v. 517 Tex.Cr.R. S.W. petent State, 269 S.W. and Brown v. But that (Tex.Cr.App.1975). App.1916) S.W.2d (Tex.Cr.App.1925). record not what the reflects. 38.11, testify against We could supra, provides wife to him. Article band’s relevant against charge part: dismissed the murder “ * * her, her to may, still have called and we couldn’t The husband and wife all *8 actions, happen just to be testify. Now does that criminal witnesses for each other they testify against they got but ... shall in no case married mere coincidence ”* * * prosecution. in a each other criminal murder committed?” after this argument was sustained to this An prosecutor’s understanding
17. The of disregard jury to it. the instructed argument outside the demonstrated another record: Alabama, 16, ante, Douglas v. n. 18.See know, thing after this event “Another we 1074, 934 13 L.Ed.2d 85 U.S. S.Ct. 380 got they married. Under the laws the (1965). Texas, a hus- cannot call State the State
303 Further, The most em- similar case we found to the nature of the matters have questions propounded the one is the instant Washburn v. 299 bodied in the There, conveyed jury 706 ... the (Tex.Cr.App.1956). S.W.2d the witness testimony the nature of information called the State defendant’s coindictee to him apparently possessed by stand; knowledge name, the after the wit- stating his killing. Although the State of the ness invoked his privi- Fifth Amendment properly claims that ... was lege, but the interrogate State continued to testify, yet at no time did called to him, eliciting testify upon his refusal court compel move the to direct or each question. objected Defense counsel first questions. the The answer the asking questions State’s additional which the witness propounded the placing jury matters before answer mo- declined to authorized such which could not directly. be shown The questions complained other tion. The objection was Questions pro- overruled. nothing prejudice against added but more pounded pointed to inquired about the The court’s withdrawal witness’ association and participation with from the questions consideration the defendant in making plans prepara- could not have effec- been tions to commit a murder. None of the [Emphasis tive. original]” ... questions were answered. conviction 707-709. S.W.2d at was reversed. it did: one in the case before us. the coindictee witness. witness rate reversible error for the privilege,19 ue interrogating the witness in the manner cause in that case the burn, supra, was the producing was the answer was permitted that he crime was full details as to substantive that his answers dence nate “By For while a basis for In the instant distinction, Washburn, supra, *****' these him, and eliciting refused to answer on the all. factladen which of committed, evidence which Court case, plant might tend how it is not a his invocation of the considered State questions course was It is true that this distinguishable reversal State State initially called yet claimed this jury’s calling the dispositive it a the State to contin- in Wash- contends incrimi- witness no evi- sepa- mind be- right to conduct invocation of cumstances; ed: ing As ness was indicate that questions injury authorities self-incrimination, should not ditions which questioning witness himself. Rejecting S.W.2d at “When the previously testify jury the Washburn, [the fact done, withdrew the witness] had been consideration tends wrong in the first cited in our original opinion— ... that the trial of the 709-710. facts, circumstances, showing stated, proper crossexamination of Taylor, and even State’s motion for rehear- supra, because of State, however, could not endeavored, questioning could not be the State —under witness, propounded the Court conclud- State had court, under the questions properly prove by his claim strongly instance.” compelled after elicit further or every made from wit- con- cir- already invited, jury’s presence 19. We have stated outside the no indication perforce waived, own testify (as error in his trial. refuse is re- witness law) quired by opportunity to the State had no Since witness could taking prevent or 38.11, coindictee, supra, under Article and as a Thus, there, State since she was stand. had no reason to believe would do to crossexamine her at defense was entitled when otherwise called to the the de- stand counsel’s invitation. Accordingly, gave fense. since defense counsel *9 rules, then the this Court stating to the entitled have the witness invoke and, following: stated the knowing Fifth repeatedly Amendment so, she would do her to upon seize refusal wit- that “when a recognizes This court place natural, as an the opportunity indeed privilege, ness claims parts of which hearsay inevitable, her arises as inference an almost husband, context incriminated have been his answer to what would manifestly the accused. this prejudi- regard, For refused.” ... In this part cial conduct on the of the the is it was noted very which the of the integrity testify, adulterated witness to called the factfinding process, knowledge these causes are re- the wit- apparent with versed and remanded. invoke Amend- ness the Fifth intended point this inevita- At privilege. ment
It is so ordered. the witness arose that had ble inference testified, have done so in behalf he would DAVIS, W.C. McCORMICK CAMP- noted, It is further the BELL, JJ., dissent. appellant’s court overruled although the TEAGUE, concurring. Judge, abruptly matter was objection, the reversible prosecutor. the No dropped by prosecuting attorney I find that the [Emphasis error shown. cause, Added] got trial counsel appellant’s after gate, got the “horse” up to the attorney instance, prosecuting In “horse,” opened gate, thereafter the matter. drop did not unmercifully. caused rode “horse” He opinion majority By what is stated damage pasture. The appellant’s much attorney and cause, prosecuting in this holding majority correct in that reversi- knew attorney trial error in this cause. ble was committed was a co-indictee the witness (Tex. Glasper In S.W.2d called the witness was appellant. Once Cr.App.1972), point, thing to a the same attorney prosecuting the appellant, happened happened in this cause like objecting feet should have been there. In a co-indictee was called Glasper, held hearing that a be crazy requesting testify. The witness defendant He did jury. presence outside the invoking refused to his Fifth testify by neither, counsel appellant’s allowed privilege against Amendment self-incrimi gate. When lead “horse” nation. This set out rules: Court prosecut- anything, not do “horse” did witness, general rule is that when a trial permission ing attorney, accused, other than declines to answer a “horse,” gate opened judge, got on on the his answer through rode “horse” unmercifully him, re- would tend to incriminate doing much inferential appellant’s pasture, made fusal alone cannot be the basis pasture. damage to the jury, favor- inference either cause, in attorney in this prosecuting or favorable to prosecution able trial overrul- judge’s conjunction with the defendant... too much objection, caused ing that, the rule is in re- The reason for appellant’s pasture damage to be done question on the fusing to answer a I, not to have occurred. for reversible answer would tend ground that the rever- reluctantly concur to therefore, him, is exercising incriminate sal. himself, personal constitutional help the exercise of which neither If no person.
nor harm third inference indulged against per- guilt can be testify,
son who declines to none could guilt
drawn as co-indictee...