concurring in result.
I would not adopt the Cardillo rule in this case for at least two reasons:
(1) As I understand Cardillo, the refusal of a witness to testify would be excused if cross-examination were collateral to the main inquiry. This facet of Cardillo is of dubious constitutional validity. In Smith v. Illinois, 390 U.S. 129, 88 S.Ct. 748, 19 L.Ed.2d 956 (1968), on cross-examination of the principal prosecution witness the trial court sustained the prosecutor’s objections to questions which pertained to matter collateral to the main inquiry — the credibility of the prosecution witness. The court held defendant was denied his Sixth Amendment right to confront the witnesses against him.
(2) I agree with the author of the Cardillo opinion that it constitutes and represents unsatisfactory “generality * * * for a trial judge who is required to give instantaneous rulings on close questions and who does not enjoy the luxury of reflective appellate deliberation * * *I do not agree with the author of the Cardillo opinion that “any set of specific dogmas would be even more unworkable.”
In 5 Wigmore, Evidence, § 1391 (Chadb-ourne Rev. 1974), the general rule is stated as follows:
“Where the witness, after his examination in chief on the stand, has refused to submit to cross-examination, the opportunity of thus probing and testing his statements has substantially failed, and his direct testimony should be struck out. On the circumstances of the case, the refusal or evasion of answers to one or more questions only need not lead to this result.”
In McCormick, Evidence, § 19, appears the following:
“It is submitted that the judge should let the direct testimony stand but should be required on request to instruct the jury in weighing its value to consider the lack of opportunity to cross-examine.”
In Missouri, a witness may be penalized for refusing to testify. Section 491.200, RSMo 1969, reads as follows:
“A person summoned as a witness, and attending, who shall refuse to give evidence which may lawfully be required to be given by such person, on oath or affirmation, may be committed to prison by the court, or other person authorized to take his deposition or testimony, there to remain, without bail, until he gives such evidence.”
I would submit that the following rules of procedure are appropriate in a situation such as presented here:
(1) If a non-party witness shall refuse to give evidence which may lawfully be required to be given, the trial court may impose the sanction provided in § 491.200, supra.
(2) If the sanction provided in § 491.200, supra, is unsuccessful or impractical, and if the witness refuses to submit to cross-examination at all, his direct testimony should be struck out.
(3) If the sanction provided in § 491.200, supra, is unsuccessful or impractical, and if the witness shall refuse to give an answer to a question which he may lawfully be required to answer, after being instructed by the trial court to answer, the trial court should let the direct testimony stand but should immediately advise the jury that the witness’ refusal may be considered by the jury in determining the credibility of the witness and the weight his direct testimony deserves (Cf. Devitt and Blackmar, Federal Jury Practice and Instructions, 2d.Ed.1970, § 12.12). Admonitions by courts to juries during trial are commonplace in Missouri. For example, we encourage trial courts to instruct juries to disregard objectionable testimony. State v. Lira, 372 S.W.2d 80, 82 (Mo.1963).
(4) If the witness continues to refuse to answer questions to an extent that “the opportunity of * * * probing and testing his statements [made on direct examination] has substantially failed,” and he has, in effect, refused to submit to mean*348ingful cross-examination at all, his direct testimony should be struck out.
I would turn then to application of these rules to the circumstances of this case. Witness James Moore did not refuse to submit to cross-examination. He refused to answer only one question. The trial court struck his direct testimony. The effect of this ruling was to deprive appellant of his only witness. In my opinion, the trial court prejudicially erred.
I concur only in the result.