(dissenting).
Contrary to the majority opinion, I do believe that Beach v. United States, C.C.N.D.Gal., 46 F. 754, does apply here as supportive of the proposition stated at 24 A.L.R.2d 896:
*611«* * * the general rule is that when a witness, other than the accused, declines to answer a question on the ground that his answer would tend to incriminate him, that refusal alone cannot be made the basis of any inference by the jury, either favorable to the prosecution or favorable to the defendant.”
In the instant case a defense witness, the defendant’s younger brother, seventeen years of age, was advised of his rights by the trial court as required of the court by SDGL 19-2-8 when early in direct examination he implicated himself in the criminal act alleged. The provisions of SDCL 19-2-8 safeguard the rights of a witness under the provisions of Art. VI, § 9 of the South Dakota Constitution. The provisions of this statute make available to a witness the basic rights assured a defendant under SDCL 23-2-14 and 23-44-1. These two laws, which together fully protect defendant’s right to remain silent, have, as indicated by the numerous cases annotated thereunder, been construed to prohibit counsel from referring in any manner or at any time to defendant’s refusal or failure to testify.
This appears to be a case of first impression in this state, but since it has come before this court I would reverse with direction to grant a new trial on the basis that the comment of the prosecuting attorney tended to draw inferences from the witness’ refusal to answer. I would base this first upon the general rule stated above, 24 A.L.R.2d 896, wherein it is further stated that:
“The reason for the above rule is that, in declining to answer a question on the ground that the answer would tend to incriminate him, the witness is exercising a constitutional right personal to himself, the exercise of which should neither help nor harm a third person.” See also A.B.A. Standards for Criminal Justice, Standards, Prosecution Function and the Defense Function, § 5.8(b).
It should also be noted that Instruction 13 referred to in the majority opinion was an adaptation of California Jury Instruction, Criminal 55 which is now California Jury Instruction, Criminal 2.25 which reads as follows:
*612“When a witness refuses to testify as to any matter, basing his refusal on the constitutional privilege against self-incrimination, you are not to draw from that fact any inference as to the credibility of the witness or as to the guilt or innocence of the defendant.”
The California legislature has qualified the application of the general rule by a 1965 enactment of their Evidence Code § 913 to require the instruction only when it is requested by the party adversely affected. If the instruction is to serve its purpose it should be treated with the same degree of care as applies where the defendant has refused or failed to testify.
The instruction having been given it became the law of the case binding on the court and counsel. SDCL 23-45-1 and annotations thereunder.