mistaken.'" Hoffman v. United States, supra, quoting Temple v. Commonwealth, 75 Va. 892, 899 (1881).
The burden on the witness to avoid answering questions for this reason is not a heavy one. He is not required to demonstrate conclusively that the answer to the question would surely subject him to prosecution, nor does he need to demonstrate that the answer to the question is likely to result in his being convicted of some crime. Emspak v. United States, 349 U.S. 190, 75 S. Ct. 687, 99 L. Ed. 997 (1955). Nor does he have to disclose the exact hazard feared, United States v. Zwillman, 108 F.2d 802 (2nd Cir. 1940), as this could itself easily lead to incrimination. It is necessary, to sustain the privilege, only that the witness make it evident from the question and its implications, considered in the setting in which it is posed, that the answer, or even an explanation as to why it cannot be answered, might be dangerous, because an injurious disclosure might result. Emspak v. United States, supra ; Hoffman v. United States, supra ; Rogers v. United States, supra.
A review of the circumstances surrounding the witness Williams shows that he could not bear even this slight burden. The court conducted an inquiry of the witness (N.T. 13-16), and concluded that his claim of privilege was mistaken. This was correct since he had already been insulated from any further prosecution arising out of the events about which he was being questioned by virtue of his earlier acquittal. Relator's trial counsel suggested that an answer might leave the witness vulnerable to a charge of being a common gambler; however, a common gambler is one who gambles for his livelihood, or maintains a gambling establishment. The mere act of playing cards for money is not a criminal offense under Pennsylvania law. 18 P.S. § 4603; Commonwealth v. Aversano, 67 Pa. Dist. & Co. 371 (1948).
With regard to the second allegation of relator, that the trial judge incorrectly denied Williams his right to exercise the privilege against self-incrimination, relator lacks standing to complain of this ruling. In Alderman v. United States, 394 U.S. 165, 89 S. Ct. 961, 22 L. Ed. 2d 176 (1969), which dealt with Fourth Amendment rights, the Court said that "suppression of the product of a Fourth Amendment violation can be successfully urged only by those whose rights were violated by the search itself, not by those who are aggrieved solely by the introduction of damaging evidence. Coconspirators and codefendants have been accorded no special standing." Id. at 171-172, 89 S. Ct. at 965. (Emphasis supplied). In Bryson v. United States, 136 U.S. App. D.C. 113, 419 F.2d 695 (D.C. Cir. 1969), a Fifth Amendment case, the court found that Alderman "clearly establishes that notwithstanding any past indications to the contrary, appellant has no standing to complain of any violation of [another's] Fifth Amendment rights." Id. at 697-698.
There is nothing in the law of Pennsylvania which precludes an accomplice from testifying. The law is that "all persons shall be fully competent witnesses in any criminal proceeding before any tribunal." 19 P.S. § 681. (Exceptions exist which are not relevant here.) Co-indictees are qualified to testify under this rule. Commonwealth v. Farrell, 319 Pa. 441, 181 A. 217 (1935). This is a generally accepted practice, to which Pennsylvania conforms. 2 Wigmore § 580, at 707-710 (3d Ed. 1940); and Washington v. Texas, 388 U.S. 14, 87 S. Ct. 1920, 18 L. Ed. 2d 1019 (1967).
And now, to wit, this 20th day of January, A.D. 1971, it is hereby ordered that relator's petition for a writ of habeas corpus be and the same is denied.
There is no probable cause for appeal.
And it is so ordered.
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