(dissenting).
I must respectfully dissent.
I cannot agree with the reasoning of the majority in its ruling on Bill of Exceptions No. 1. We hold that under some federal rules and regulations, FBI agents can refuse to answer any question when summonsed as defense witnesses. Then, when the defense attempts to avail itself of a remedy in accordance with the same federal rules and regulations, he is denied the continuance because, we say, “this was a state trial, not a federal proceeding.”
We have not been made aware of any state statute or jurisprudential rule which *363grants á privilege to an FEI agent that will allow him to decline to testify in a state prosecution.
There are two possibilities: (1) the disclosure of the particular evidence sought was not prohibited by the federal regulations; (2) the evidence sought was irrelevant. These possibilities should have been explored, instead of simply holding that an FBI agent might, when he chooses, announce that he will not testify because of an order from an assistant United States attorney.