# Washburn v. State

> Court of Criminal Appeals of Texas · October 3, 1956 · 164 Tex. Crim. 448

URL: https://www.frixlaw.com/law-library/cases/9664440

## Case

- **Full name:** Harry L. Washburn v. State
- **Court:** Court of Criminal Appeals of Texas
- **Decided:** October 3, 1956
- **Citations:** 164 Tex. Crim. 448; 299 S.W.2d 706; 1956 Tex. Crim. App. LEXIS 956
- **Precedential status:** Published
- **Opinion:** On rehearing by Davidson
- **Judges:** Belcher, Davidson
- **Cited by:** 54 later opinions in the Frix Law Library

## Citator (automated)

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## Opinion text

ON STATE’S MOTION FOR REHEARING
DAVIDSON, Judge.
The contentions urged in the motion for rehearing by the state have given us much concern.
The state stresses that this record does not affirmatively show that the witness Nelson was a co-indictee with appellant in this case and therefore was not in position to claim self-incrimination. In that connection it is urged that the proof relied upon to show that Nelson was a co-indictee was only a statement by counsel in his objection to the questions propounded by state’s counsel to the witness.
As to this matter, note is taken of the fact that the wife of the witness Nelson testified as follows:
(“Q. You are the wife of Andrew H. Nelson?) A. I am.
(“Q. And he stands charged by indictment in San Angelo *454 as being accomplice to murder in the murder of Mrs. Helen Harris Weaver?) A. That’s right.”
It is insisted that this testimony amounts to only an expression of an opinion and conclusion by the witness. The correctness of the state’s contention in this respect need not be determined, for we have concluded that the questions propounded by the state to the witness Nelson all strongly tended to show that Nelson was, in fact, criminally connected with the murder accusation.
Taken in connection with the testimony of the wife, these questions were sufficient to warrant the unchallenged conclusion that the witness Nelson was a co-indictee with the appellant.
As was pointed out in the original opinion, after it was made clear that the witness Nelson refused to testify as a witness upon the grounds of self-incrimination state’s counsel continued his interrogation of the witness and thereby, in much detail by the questions propounded, got before the jury the inference not only that Nelson was an accomplice but that appellant was guilty with him in the commission of the offense charged.
The questions so propounded effectually suggested that not only was Nelson guilty but also that appellant was guilty of participation in the murder of the deceased.
When the showing was properly made that Nelson could not be compelled to testify as a witness in the case because of his claim of self-incrimination, the state — under the authorities cited in our original opinion — should not have endeavored, by further questioning of the witness, to get before the jury facts, circumstances, or conditions which it could not prove by the witness, himself.
The fact that the trial court, after the questions had been propounded and the injury done, withdrew the questions from the jury’s consideration tends strongly to indicate that the questioning of the witness was wrong in the first instance.
To hold that the conduct of the state in propounding the questions to the witness Nelson was not error would require that we overrule the cases holding to the contrary.
*455 We are constrained to conclude that a correct conclusion was reached originally.
The state’s motion for rehearing is overruled.
(WOODLEY, Judge, not participating.)

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9664440. Public record. Not legal advice.