OPINION
HENDLEY, Judge.Convicted of the unlawful sale of a depressant drug contrary to § 54 — 6-38(B), N.M.S.A. 1953 (Repl. Vol. 1962, pt. 2, Supp. 1971) defendant appeals asserting three points for reversal. The third point relating to the trial court’s failure to grant a mistrial is dispositive of the appeal.
We reverse.
During the course of the state’s case the names of Marlin Strange, Tom Garlow, Mickey Aragon, Butch Hale, Donnie Phillips and Wallita Collums were mentioned several times as associates or friends of defendant. All of these individuals had been present when the alleged sale was made. The state’s case rested primarily on the testimony of an undercover agent who made the alleged purchase from defendant. Defendant was the sole witness for the defense and denied the sale.
The state, in the presence of the jury, stated that it would call Strange, Garlow, Aragon, Hale, Phillips and Collums as rebuttal witnesses. Collums was called first and after several questions and answers defendant objected on the ground that the testimony was “not rebutting anything.” The objection was sustained. Garlow was ■called next and refused to testify for the reason that “The answer to that question may incriminate me.” Defendant’s motion for a mistrial on the grounds of prejudice was denied. The prosecution then stated:
“ * * * These witnesses have refused to talk. They have said they would state in Court they wouldn’t talk to us, Your Honor.”
The jury was excused and Aragon was called. He stated he could not remember anything. The state then rested its case. Defendant again moved for a mistrial “ * * * on the ground of the five [sic] rebuttal witnesses having been called by the State and being sworn and presented in front of the Jury and it was only done for the purpose of prejudicing the Defendant in the eyes of the Jury. * * * ”
It is apparent from the foregoing that the state was aware that the witnesses would not testify. We do not ascribe any particular motive to the state in the calling of the six witnesses in spite of its stated information regarding their refusal to talk. We discuss only the issue of prejudice to the defendant.
This precise question has not heretofore been passed upon by this court or the New Mexico Supreme Court. It is not, however, a novel question to the courts of other jurisdictions. See Annot., 86 A.L.R.2d 1443 (1962) and A.L.R.2d, Later Case Service, Supp. 85-91 A.L.R.2d (1968).
Without passing on the question presented in the instant case the United .States Supreme Court in commenting on the various lower Federal Court opinions stated in Namet v. United States, 373 U.S. 179, 83 S.Ct. 1151, 10 L.Ed.2d 278 (1963):
“None of the several decisions dealing with this question suggests that reversible error is invariably committed whenever a witness claims his privilege not to answer. Rather, the lower courts have looked to the surrounding circumstances in each case, focusing primarily on two factors, each of which suggests a distinct ground of error. First, some courts have indicated that error may be based upon a concept of prosecutorial misconduct, when the Government makes a conscious and flagrant attempt to build its case out of inferences arising from use of the testimonial privilege. This seems to have been one of the principal reasons underlying the finding of reversible error in United States v. Maloney, supra. [262 F.2d 535 (2d Cir., 1959)]. In that case, the prosecution admitted knowing that two of its key witnesses could validly invoke the privilege against self-incrimination and intended to do so. The prosecutor nevertheless called and questioned them. The court also found that the Government’s closing argument attempted to make use of the adverse inferences from their refusals to testify. See also United States v. Tucker, 3 Cir., 267 F.2d 212. A second theory seems to rest upon the conclusion that, in the circumstances of a given case, inferences from a witness’ refusal to answer added critical weight to the prosecution’s case in a form not subject to cross-examination, and thus unfairly prejudiced the defendant. This theory seems also to have been present to some extent in the Maloney decision, where the court noted that the challenged inferences were the only corroboration for dubious and interested testimony by the Government’s chief witness. 262 F.2d, at 536-537. On the other hand, courts have failed to find reversible error when such episodes were ‘no more than minor lapses through a long trial.’ United States v. Hiss, 185 F.2d 822, 832 (C.A. 2d Cir.). See also United States v. Amadio, 215 F.2d 605, 614 (C.A. 7th Cir.). And even when the objectionable inferences might have been found prejudicial, it has been held that instructions to the jury to disregard them sufficiently cured the error.” [footnote omitted].
In the instant case we have the following circumstances: the defendant denying the sale to the undercover agent; the statement by the prosecutor that he would call six rebuttal witnesses and the reasonable implication thereby conveyed to the jury that the witnesses would contradict defendant’s testimony; the state’s knowledge that the witnesses would refuse to talk; and a witness refusing to testify on the grounds the answer may tend to incriminate him.
Under the foregoing posture we think the language in State v. Johnson, 243 Or. 532, 413 P.2d 383 (1966) most appropriate:
“In State v. Harper, supra, [33 Or. 524, 55 P. 1075 (1899) ] this court reversed the guilty judgment because the trial court permitted the district attorney to comment upon the guilt of the defendant to be inferred from the state’s witness invoking his constitutional right. In this case, the district attorney refrained from making comment. Nevertheless, it would seem equally reversible error for the state to call a witness, who it appears from prior testimony, already in the record, may have been closely associated with the defendant in the scheme to defraud, and the witness has been indicted for but not convicted of his purported participation in that scheme, when the state knows that the witness will invoke his constitutional right, and, with this knowledge, asks questions from which the jurors themselves could infer that if the questions were answered truthfully the answers would tend to establish the quilt of the defendant.” (Emphasis ours.)
We deem it of no significance that in the Johnson case the witness who was called had been indicted while, as far as appears from the record, the witnesses in the present case had not been criminally charged. It is sufficient that the witnesses were present when the alleged purchase took place and that the prosecution knew they would' decline to testify in rebuttal.
We cannot agree with the state that the error “without any showing that defendant was affected thereby is at best a species of harmless error.” Nor can we agree with the proposition that defendant has the burden of showing prejudice. Under the circumstances of this case prejudice is presumed. Once the state has obtained the benefit of the inference of defendant’s guilt, which is not subject to cross-examination, it cannot have the benefit of a presumption that this inference was not prejudical and shift the burden to defendant to show there was prejudice. The witnesses’ right, to invoke the constitutional right of self-incrimination is a personal privilege over which defendant has no control. Under the circumstances of this case the state does have control, that is to say, the state need not call the witness when it knows the witness, who was associated with defendant, will refuse to testify on the grounds that it may incriminate him. “ * * * If the state is at any time uncertain whether or not a witness will refuse to testify, this can easily be determined before the trial court in the absence of the jury and the appearance of purposeful prejudice avoided.” State v. Johnson, supra.
Reversed and remanded for a new trial.
It is so ordered.
HERNANDEZ, J., concurs. LOPEZ, J., dissents.