Donworth, J.
Reinhart Henry Nelson, John Thomas Patrick, Jr., and Alberta Russell Burns were jointly charged with murder in the first degree in that they,
. . . while engaged in the commission of or in withdrawing from the scene of the crimes of Attempted Burglary in the First Degree, or Attempted Robbery, did . . . shoot . . . into the body of . . . Dan Damitio, . . . then and there mortally wounding the said Dan Damitio ....
The amended information charged that the murder was committed at Damitio’s home in Grays Harbor County on February 2,1963.
Patrick pleaded guilty to the reduced charge of murder in the second degree and received a penitentiary sentence. Mrs. Burns entered a plea of guilty to a reduced charge of burglary in the second degree and received a probationary sentence. At his first trial Nelson, who pleaded not guilty, was tried and convicted. He was sentenced to life imprisonment. Upon appeal, that judgment and sentence was reversed by this court and he was granted a new trial because of the admission in evidence against Nelson of the testimony of A. M. Gallagher, undersherifi: of Grays Harbor County, relating to the details of a purported oral confession of Patrick, made out of the presence of Nelson. State v. Nelson, 65 Wn.2d 189, 396 P.2d 540 (1964).
[271]*271It is stated in appellant’s brief in the present case that a second trial was commenced in Grays Harbor County on April 7, 1965, which terminated 2 days later in a mistrial ordered during presentation of the state’s case. By stipulation, the cause was then transferred to Thurston County for the third trial, which was held June 28, 29, and 30, 1965, before visiting Judge Warner Poyhonen sitting with a jury. That trial resulted in appellant’s second conviction of murder in the first degree and the imposition of a sentence of life imprisonment. This appeal is taken from that judgment and sentence.
Three assignments of error are stated by appellant as follows:
I. The trial court erred in permitting the prosecution to require John Thomas Patrick to claim his privilege against self-incrimination in the presence of the jury.
II. The trial court erred in admitting the opinion of R. F. Simmons as an expert.
III. The trial court erred in refusing to dismiss the state’s case on the grounds of insufficiency of evidence.
We shall discuss these assignments of error in inverse order for reasons that will become apparent.
Insufficiency of the Evidence
In instruction No. 15, the trial court properly instructed the jury:
The fact that Daniel E. Damitio died as a result of a gunshot wound suffered on or about February 2, 1963, if you find this to be a fact, does not of itself prove, or tend to prove, in any way that the defendant committed any crime, nor does it support any degree of probability that the defendant did so.
That the said Daniel E. Damitio was killed in a criminal manner, and that the defendant committed this crime, are two independent facts, both of which the State must prove beyond a reasonable doubt. If the State should fail to prove either beyond a reasonable doubt, your verdict must be for the defendant.
Exclusive of the disputed testimony of Mr. Simmons, the state’s evidence tended to show the following:
[272]*272Dan Damitio was the owner and operator of a grocery store and gas station located across the highway from his home in Cedarville. His body was discovered in his home on the morning of February 3, 1963, by two friends, Mr. Warness and Mr. Golman. There was a great deal of blood in various rooms of the house. The body, shot through the left arm, was lying on the floor of the bedroom. Dr. Charles Pollock, the county coroner, testified that there was what appeared to him to be a powder burn on the forearm of the victim. Dan Damitio died from loss of blood. According to the testimony of Dr. Pollock, the wound in Damitio’s arm, from which he bled to death, was caused by a bullet striking his upper arm, producing disruption and breaking the blood vessels. Dr. Pollock found one or more fragmented metalic particles in the arm.
There was an apparent attempt by Damitio to write a will sometime after he was shot. Dr. Pollock testified to having seen the writing on a paper on the kitchen table, beneath which there was an accumulation of blood.
On the fireplace hearth, officers found a Smith & Wessen .38 special revolver which belonged to Damitio. The gun contained two loaded and four spent cartridges. There was one new bullet hole through the front door of the house, and two through an exterior porch wall. There was blood on the front porch. The slug which passed through the front door was recovered and was found to be from the .38 pistol.
There were no signs of forced entry through either the front or back door. Both doors were closed and locked when witnesses Warness and Golman arrived at the scene. A front window was broken out, however, and a stick of wood was found lying on the davenport inside the window. Mr. Warness entered the house through that window after removing two pieces of broken glass.
Law enforcement officers, utilizing a metal detector obtained from Fort Lewis, searched the premises thoroughly for a rifle casing or slug, but found none. Hence, except for the opinion testimony of Mr. Simmons, a former sheriff (to [273]*273be discussed later), there was no direct evidence that any weapon other than the .38 special belonging to the deceased was fired at the scene.
The foregoing evidence, taken together with Mr. Simmons’ opinion testimony, constitutes the entire state’s case relating to the corpus delicti, which is the first element of the crime to be proven beyond a reasonable doubt (see instruction No. 15, supra), to wit, that Dan Damitio was killed in a criminal manner.
The only direct evidence connecting appellant with the death of Damitio was the testimony of Mrs. Burns, an alleged accomplice. Her testimony, if believed by the jury, would establish the following:
She and Patrick drove Patrick’s station wagon north from Aberdeen on February 2, 1963, stopping for gas in Hoquiam. They subsequently made stops at the Wigwam tavern and at the Ox Bow. They met appellant at a tavern in Amanda Park at about 4 or 4:30 p.m. There, the three had a few drinks and played shuffleboard. Nelson 'and Patrick left for about five minutes, but Mrs. Burns testified that she did not know where they went. The trio left the tavern in Amanda Park shortly after Patrick and Nelson returned, and they went to Nelson’s cabin near Lake Quinault. Patrick and Nelson went into the cabin, and returned a few minutes later with a rifle, placing it behind the front seat of the car on the floor. Mrs. Burns also testified that there had already been a rifle there, one given Patrick by her father at some earlier time. She said she had asked the two what the rifle was for, and one of them replied that “something was up.”
The three then set out for Aberdeen, stopping on the way at the Ox Bow for coffee, and at the Midway tavern on the boundary between Aberdeen and Hoquiam.
When they left that tavern, they headed for Montesano, which is 10 miles east of Aberdeen. Patrick asked Mrs. Burns if she had some nylon stockings, and she replied that she did not. Patrick then stopped in Montesano and sent Mrs. Burns into the Safeway store to purchase two pairs of [274]*274nylons. She returned to the car after making the purchase, and Patrick then drove the car toward Elma. They passed on through Elma toward Cedarville.
She testified that they did not continue on the main road through Cedarville, but turned off onto a side road when they noticed a car with no lights on in a garage. They went down the road about a mile, and stopped at a service station. Mrs. Burns testified that, after they had stopped, Patrick and Nelson discussed something about which would be the best way to go in.
At this point, Mrs. Burns took the nylon stockings she had purchased in Montesano out of the glove compartment and placed them on her lap. She stated that Nelson took one, stretched it as if to put it over his head, but that neither of the men wore the stockings when they left the car.
Patrick and Nelson got out of the car, Patrick telling Mrs. Burns to keep the motor going, and that, if any car came along, she was to drive until she passed the car and then turn around and come back. A car did come along once while the two men were out of the car and Mrs. Burns obeyed Patrick’s instructions.
She further testified that neither of the men took anything with them when they first left the car. Patrick returned to the car after a time and took a flashlight. According to her testimony, to her knowledge, neither of the rifles lying on the floor behind the seat in which she was sitting was taken from the car. She also stated that she could not tell which way Patrick and Nelson went after they left the car, because it was dark and raining outside.
Mrs. Burns testified that there were no lights on either in the house across the street from the service station (Damitio’s house) or in the service station itself. Mr. Golman, who heard two shots from the direction of Damitio’s house, testified that the lights in the house went on just after the shots were fired.
Both Patrick and Nelson returned to the car, Nelson saying, “I am shot.” Patrick later admitted to Mrs. Burns [275]*275that he, too, had been shot, and she then took the wheel of the car and drove the rest of the way to St. Joseph Hospital in Aberdeen.
In the trial court’s instruction No. 20, the jury was told that:
You should consider the testimony of an alleged accomplice only with great care and caution. You must subject such testimony to careful consideration in light of other evidence in the case. You should not find the defendant guilty on the basis of such testimony alone unless, after a careful examination of it, you are satisfied beyond all reasonable doubt of its truth.
The evidence outlined thus far, which, except for the testimony of one man, constitutes the state’s case in its entirety, is not sufficient to support the conviction of Nelson. Giving full credibility to the evidence with all inferences to be properly drawn therefrom, it shows only that Damitio bled to death as a result of a gunshot wound in the left arm. Four shots were fired from his .38 pistol and only four bullets were accounted for at the scene of the death. Patrick, Nelson, and Mrs. Burns were at the scene of the alleged killing, according to Mrs. Burns’ testimony. That testimony is the only evidence connecting appellant with the crime charged. There is lacking from the state’s case thus far, proof of the essential causal connection between the death of Damitio and the criminal act or agency of another person. However, the additional evidence tending to prove that element, introduced by the state and discussed below, was sufficient to take the case to the jury. Appellant’s first assignment of error is without merit.
In order to establish that final element, that another gun (other than Damitio’s own .38 revolver) had been fired, and that a bullet from that other gun caused the wound from which Damitio died, the state introduced the testimony of a former Grays Harbor County sheriff, Richard Simmons.
At the time of the trial, Mr. Simmons was director of the Washington State Safety Council. He had been sheriff of [276]*276Grays Harbor County for 14 years prior to the trial, and before that he had been a Washington state liquor inspector for 3 years. Guns were his avocation. He hunted large game, and possessed an extensive collection of firearms. His interest in guns and ammunition dated from 1935. He testified that he had written articles which were published in national publications in general circulation, and in law enforcement magazines and bulletins. His special interest was in “wildcat” cartridges and custom-built rifles. This was his first experience in testifying on the particular subject involved here. He did not claim to be a ballistics expert.
Mr. Simmons first testified as to the relative explosive and striking power of pistol bullets and rifle bullets. He then testified:
Q. Dick, do you have an opinion whether or not that wound which you see there [in a photograph of Damitio’s arm] had been inflicted from a bullet from that .38 special at close range? A. Do I have an opinion? Q. Yes. A. Yes, I do. Q. What is that opinion? A. It could not have been.
It is the established rule in this state that the determination of qualifications of an expert witness is a matter within the sound discretion of the trial court. State v. Tatum, 58 Wn.2d 73, 360 P.2d 754 (1961). The trial court did not abuse its discretion in this case. Appellant’s second assignment of error is without merit.
We now turn to appellant’s main assignment of error, i.e. that it was error to permit the prosecution to require the accomplice, Patrick, to claim his privilege against self-incrimination in the presence of the jury.
Assignment of Error No. 1
We note first that the defense, in the absence of the jury, prior to Patrick’s being called to the witness stand, called to the court’s attention that Patrick had indicated an intention to claim his privilege against self-incrimination on all questions relating to the night in question. Mr. Schumacher, counsel for the defense, stated to the court:
[277]*277[I]£ there is any doubt about what this man is going to testify to, I can ask the Court to call him in the absence of the jury and let the prosecutor ask him questions. This is a very critical thing in this case and I don’t want the prosecutor getting their point to the jury by unanswered questions.
A motion was made that:
[T]he State not be allowed to call John Thomas Patrick and wring from him the protection of the Fifth Amendment, ....
The prosecutor admitted that Patrick had told him that he would claim his Fifth-Amendment privilege. The prosecutor told the court:
I said, “Are you going to claim that on all questions— everything we ask?” He said, “I don’t know—have to wait and see what the questions are.”
It is apparent that there was no equivocation on Patrick’s part as to his intention to claim the privilege to all questions relating to the events of the night in question. He had done so at Nelson’s first trial. We also note in passing that Patrick’s claim of the privilege against self-incrimination was proper, although he had pleaded guilty to the charge of second-degree murder, since he was subject to possible prosecution on an attempted burglary or robbery charge. We believe that the state had reason to believe, before calling Patrick as a witness, that he would claim his privilege to all questions relating to the events of the night in question while he was on the witness stand.
It is true that Patrick did answer some of the questions put to him on the stand such as his name; his relationship to George Patrick, a deputy sheriff; his acquaintanceship with Alberta Burns; his ownership of an automobile; and he admitted that he knew appellant Nelson and had visited him on occasion; denied that he (Patrick) owned a pistol; and stated the distance from Aberdeen to Montesano. However, no answer was given to any question relating to the alleged crime. To each of the 28 questions asked regarding ■the events of February 2, 1963, Patrick asserted his Fifth-Amendment privilege.
[278]*278The questions objected to by appellant, and to which Patrick claimed his privilage not to answer, were as follows:
Q. Directing your attention, Mr. Patrick, to the night of February 2, 1963,1 will ask you if you had occasion to see your brother George?
Q. Were you at St. Joseph’s Hospital on the night of February 2,1963?
Q. Did you obtain a gun at any time from her [Alberta Burns] father?
Q. Did you have occasion, Tom, to go to Amanda Park that day? [February 2, 1963.]
Q. Did you drive it [the car] to Amanda Park?
Q. Did you have occasion to stop at the Ox Bow Tavern on February 2nd, 1963?
Q. On February 2nd,—strike that. You recall whether or not on that date you ever went to Montesano?
Q. Well, Mr. Patrick, I will ask you whether or not on February 2, 1963, whether or not you shot and killed Mr. Dan Damitio?[1]
Q. Well, Tom, were you out in the Cedarville area on the night of February 2,1963?
Q. Prior to February 2, 1963, had you ever been out to the Cedarville area?
Q. Did you know where Dan Damitio lived?
Q. Well, Mr. Patrick, I will ask you whether or not on February 2, 1963, in the evening of that day, you were at a Dan Damitio’s house and the Cedarville store in company with Alberta Burns and Reinhart Henry Nelson?
Q. Did you have occasion to see Mr. Nelson at any time on February 2,1963?
Q. Do you know whether Reinhart Henry Nelson and Alberta Burns were out in this Cedarville area on the night of February 2,1963?
Q. Do you know whether or not or do you know if Dan Damitio’s house had a telephone?
Q. Then I take it you didn’t have a pistol in your car on February 2,1963?
[279]*279Q. Would you tell us what all you had in that station wagon on February 2,1963?
Q. I will ask you if on February 2, 1963, you did go in the basement of Dan Damitio’s home at Cedarville.
Q. You know whether or not Reinhart Nelson went in?
Q. On February 2, 1963, did you have occasion or did you go to Nelson’s cabin in Amanda Park?
Q. On that date, did Reinhart Henry Nelson bring a gun of some kind out to your car?
Q. Well, did you ever see him [Nelson] with a pistol on February 2, 1963,—revolver?
Q. Did you ever have any nylon stockings in your car on that day?
Q. Did Alberta Burns give any stockings, that date, that you know of,—
Q. Tom, I will ask you again whether or not on February 2,1963 you shot and killed Dan Damitio?
Q. Tom, I don’t remember asking you, but on February 2, 1963, did you consume any intoxicating liquor that day at all?
Q. Did you play any shuffleboard that day?
Q. Did you receive any medical attention on February 2,1963, Tom?
When this case was previously before this court (65 Wn.2d 189), we held that it was not reversible error for the trial court to permit the state to call Patrick to the stand when the prosecutor knew that Patrick would invoke the Fifth-Amendment privilege. However, in the present appeal, a greatly differing set of facts is presented.
We note first that reversible error is not invariably committed whenever a witness claims his privilege not to answer, but rather the courts will look to the surrounding circumstances in each case. Namet v. United States, 373 U. S. 179, 10 L. Ed. 2d 278, 83 Sup. Ct. 1151 (1963).
In Namet, supra, the appellant contended that reversible error was committed by the trial court when it permitted the state to question witnesses after it was known that they would claim their privilege against self-incrimination. The United States Supreme Court, in its analysis of the applica[280]*280ble law, stressed two factors, each of which, it stated, suggested a distinct ground of error.
First, some courts have indicated that error may be based upon a concept of prosecutorial misconduct, when the Government makes a conscious and flagrant attempt to build its case out of inferences arising from use of the testimonial privilege. This seems to have been one of the principal reasons underlying the finding of reversible error in United States v. Maloney, supra [262 F.2d 535]. In that case, the prosecution admitted knowing that two of its key witnesses could validly invoke the privilege against self-incrimination and intended to do so. The prosecutor nevertheless called and questioned them. The court also found that the Government’s closing argument attempted to make use of the adverse inferences from their refusals to testify. See also United States v. Tucker, 267 F.2d 212. A second theory seems to rest upon the conclusion that, in the circumstances of a given case, inferences from a witness’ refusal to answer added critical weight to the prosecution’s case in a form not subject to cross-examination, and thus unfairly prejudiced the defendant. This theory seems also to have been present to some extent in the Maloney decision, where the court noted that the challenged inferences were the only corroboration for dubious and interested testimony by the Government’s chief witness. 262 F.2d, at 536-537. (p. 186)
Noting that the witnesses had been asked only four questions to which they responded with a claim of the privilege, and that they had given extensive testimony material to the government’s case, the court, in Namet, supra, noted that:
On the other hand, courts have failed to find reversible error when such episodes were “no more than minor lapses through a long trial.” United States v. Hiss, 185 F.2d 822, 832 (C.A.2d Cir.).
The court then held, at 189:
We cannot find that these few lapses, when viewed in the context of the entire trial, amounted to planned or deliberate attempts by the Government to make capital out of witnesses’ refusals to testify. . . .
Nor can we find that the few invocations of privilege by the Kahns were of such significance in the trial that [281]*281they constituted reversible error even in the absence of prosecutorial misconduct. The effect of these questions was minimized by the lengthy nonprivileged testimony which the Kahns gave. . . . the present case is not one ... in which a witness’ refusal to testify is the only source, or even the chief source, of the inference that the witness engaged in criminal activity with the defendant. In this case the few claims of testimonial privilege were at most cumulative support for an inference already well established by the nonprivileged portion of the witness’ testimony.
We feel that the treatment of Patrick’s claim of the privilege in the first trial of Nelson may be aptly characterized as a “minor lapse.” Under the circumstances, the holding there does not control in the present appeal.
We note first that the state was aware that Patrick would claim his privilege as to all questions asked him concerning the events of the night of the alleged crime. He stated that intention to the attorney for appellant, who in turn informed the court and the state of that intention. The prosecutor admitted that Patrick had expressed the same intention to him, though perhaps less unequivocally. Further, the state was well aware that Patrick had claimed his privilege as to incriminating questions at Nelson’s first trial.
In United States v. Tucker, 267 F.2d 212 (3d Cir. 1959), a case in which the government called to the stand a witness who had claimed his privilege at the former trial of the same case, and again received his Fifth-Amendment response to the same questions which had been propounded before, the court said, at 215:
There is no suggestion that the government had any reason to believe that at the second trial the witness would answer those questions he refused to answer at the first trial. In similar circumstances, two courts of appeals have already warned that a second interrogation, which has no apparent purpose but to invite invocation of the privilege against self incrimination, is improper and is likely to constitute reversible error. See United States v. Amadio, 7 Cir., 1954, 215 F.2d 605, 613; United States v. Five Cases, etc., 2 Cir., 1950, 179 F.2d 519, 523. On a third [282]*282trial of this indictment, the witness in question should not be interrogated about any matter to which the government has reason to believe he will interpose a proper plea of self incrimination. In our view an interrogating official himself gravely abuses the privilege against self incrimination when, believing a truthful answer will incriminate a witness, he nevertheless insists on asking the incriminating question with a view to eliciting a claim of privilege and thereby creating prejudice against the witness or some other party concerned.
Had there been a genuine doubt in the mind of the prosecutor that the witness, Patrick, would again claim his privilege as he contended he would, the wisest solution, it seems to us, was that suggested by appellant’s attorney:
If there is any doubt about what this man is going to testify to, I can ask the Court to call him in the absence of the jury and let the prosecutor ask him questions. This is a very critical thing in this case and I don’t want the prosecutor getting their point to the jury by unanswered questions.
As noted by the Fifth Circuit Court of Appeals in San Fratello v. United States, 340 F.2d 560, 565 (5th Cir. 1965):
There is nothing about the government’s right to have a witness claim his privilege in response to specific questions while on the stand under oath that requires it to be done in the presence of the jury.
Another solution would have been to have discontinued the examination of this witness for the state once it became apparent that the witness did in fact intend to claim his privilege, as he had a right to do. This procedure met with our approval in the first trial of Nelson.
But, in the present case, neither solution was attempted. Instead, the prosecutor called Patrick to the stand, and, in the presence of the jury, asked 28 questions of Patrick outlining substantially in its entirety the state’s theory of the case. As anticipated, Patrick claimed the privilege against self-incrimination to each of the questions.
We must further stress the fact that several of the questions asked Patrick by the prosecutor were not based on evidence presented in this trial, but were taken from Pat[283]*283rick’s alleged oral confession as related by undersheriff Gallagher in Nelson’s first trial. It was precisely that testimony of Mr. Gallagher’s, setting forth the details of Patrick’s purported oral confession, that resulted in the reversal of Nelson’s first conviction. State v. Nelson, supra. This rather transparent attempt by the state to get these inadmissible matters before the jury by way of inference cannot be approved.
Finally, this questioning of Patrick must be viewed against the background of the state’s case as a whole. The only evidence tending to show that Dan Damitio died as the result of a wound caused by any bullet other than the one fired from his own gun was the opinion testimony of Mr. Simmons. The only direct evidence placing Nelson at the scene on the evening in question is the testimony of Mrs. Burns, an alleged accomplice, whose testimony seems to be that neither Patrick nor Nelson was armed when they left the car.
We noted in the opinion on the first appeal of this case, at 191, that:
[T]his confession [oral statements given to undersheriff Gallagher by Patrick] was the only intelligible account presented by the state of what happened on the evening of the shooting and of Nelson’s participation therein.
The only substantial change in the evidence presented by the state was the substitution of the testimony of Mr. Simmons, who stated that Damitio’s wound could not have been caused by a shot fired from his own .38 special, for the testimony of Dr. Charles P. Larson, a pathologist, according to whom it was “highly unlikely” that a bullet fired from a .38 special would cause such a wound.
In Fletcher v. United States, 332 F.2d 724 (D.C. Cir. 1964), a case substantially “on all fours” with the present case, the court stated, at 726, that:
Among the circumstances of the case at bar are the following features: (1) The Government knew, and the court also knew, that Anderson would refuse to testify upon his claim of the privilege under the Fifth Amendment. (2) The prosecutor asked a series of questions, [284]*284which depicted the alleged offense in its entirety. The questions were not a “few lapses” as referred to in Namet. (3) The testimony sought from Anderson was the principal source of support for the testimony of the Government’s only witness, the cab driver, and thus, if the jury drew inferences from Anderson’s refusal to answer, those inferences would have served that purpose. (4) Anderson’s refusals to testify were not incidents in the course of other admissible testimony given by him. He gave no other testimony. Save for the formalities, such as name, age and address, his refusals constituted the whole of his participation in the case. (5) Anderson’s refusals were not mere incidents in a long trial. . . . Anderson’s part in it was a major feature of the proceeding.
The trial court, in Fletcher, instructed the jury that no inferences or presumptions were to be drawn from Anderson’s refusal to testify, but the appellate court held that such an instruction was ineffective since the trial court added to it that the exercise of the right by Anderson “does not mean by itself, of course, that this defendant is guilty.” The appellate court felt that such a statement might have led the jury to believe that they could consider Anderson’s refusals along with other evidence as proof.
The only instruction given to the jury in the instant case bearing on this matter was instruction No. 6, which stated:
The defendant is to be tried only on the evidence which is before the jury, and not on suspicions that may have been excited by questions of counsel, answers to which were not permitted, or answers given by witnesses which have been stricken and which you have been instructed to disregard.
We think that this instruction was wholly ineffective to dispel inferences that could have been improperly drawn by the jury from Patrick’s claim of his privilege.
This rule, seemingly well established, gained the status of a constitutional right with the decision in Douglas v. Alabama, 380 U.S. 415, 13 L. Ed. 2d 934, 85 Sup. Ct. 1074 (1965). In that case, the prosecutor read from a paper, purporting to be a written confession of the witness who was an accomplice of the defendant in the crime charged. [285]*285At intervals, the prosecutor would pause and ask the witness “did you say that?” To each such question, the witness would refuse to answer on the grounds of the Fifth Amendment. The Supreme Court said:
This case cannot be characterized as one where the prejudice in the denial of the right of cross-examination constituted a mere minor lapse. The alleged statements clearly bore on a fundamental part of the State’s case against petitioner. The circumstances are therefore such that “inferences from a witness’ refusal to answer added critical weight to the prosecution’s case in a form not subject to cross-examination, and thus unfairly prejudiced the defendant.” Namet v. United States, 373 U. S. 179, 187. See also Fletcher v. United States, 118 U. S. App. D.C. 137, 332 F.2d 724 (1964). (p. 420)
It was held that the intentional asking of questions by the state of the witness who continually claimed the privilege against self-incrimination constituted a denial of the defendant’s right to confrontation under the sixth amendment to the United States Constitution. See, also, Pointer v. Texas, 380 U.S. 400, 13 L. Ed. 2d 923, 85 Sup. Ct. 1065 (1965).
The conduct of the prosecutor in placing Patrick on the stand, knowing that Patrick intended to claim his privilege against self-incrimination to questions relating to the alleged crime, and seeking to get the details of Patrick’s purported confession before the jury by way of impermissible inferences drawn from the witness’ refusal to answer the questions propounded, constituted a denial of Nelson’s right to confrontation under the Sixth Amendment. The inferences added “critical weight to the prosecution’s case in a form not subject to cross-examination,” and were thus unfairly prejudicial to appellant.
Nelson’s conviction of first-degree murder, and the judgment and sentence based thereon are, therefore, reversed with directions to grant him a new trial.
Weaver, J., and Barnett, J. Pro Tem., concur.
Hamilton, J., concurs in the result.