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02/26/76 PEOPLE v. PAYNE

February 26, 1976

PEOPLE
v.
PAYNE



Appeal from Tuscola, James P. Churchill, J.

McGregor, P. J., and T. M. Burns and N. J. Kaufman, JJ.

SYLLABUS BY THE COURT

1. Witnesses -- -- Co-Conspirators -- Co-defendants -- Self-Incrimination.

A co-conspirator who is not a co-defendant and who becomes a witness for the prosecution may not be required to incriminate himself as to the commission of some other crime.

2. Witnesses -- -- Defendants as Witnesses -- Waiver -- Self-Incrimination.

One who is on trial for a crime cannot be compelled to testify either on his own behalf or for the people; however, if he elects to do so he is held to have waived his constitutional right of refusing to answer any question material to the case, even though the answer tends to prove him guilty of some other crime than that for which he is on trial.

3. Witnesses -- Self-Incrimination -- -- Constitutional Law.

A witness who is not a codefendant, while he may turn state's evidence and become a voluntary witness on behalf of the state, is not thereby required to incriminate himself as to the commission of some other crime and he may assert his constitutional privilege against self-incrimination.

4. Witnesses -- -- Co-defendants -- Accomplices -- Self-Incrimination.

A witness who is neither a co-defendant nor an accomplice charged with any crime arising out of a delivery of LSD can testify as to the delivery of the LSD and refuse to testify as to any other event that would tend to incriminate him at the trial of another defendant charged with delivery of LSD.

5. Witnesses -- -- Res Gestae -- Appeal and Error -- Harmless Error.

An incorrect ruling which in effect precluded witnesses from testifying at all as to the res gestae is not harmless error; the witnesses may have denied that a crime occurred, aiding the defense, thereby preventing a Conclusion that the error was harmless beyond a reasonable doubt.

The opinion of the court was delivered by: Per Curiam

Joseph A. Payne was convicted of delivery of LSD. ...


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