(dissenting).
I would affirm the trial court in this cause. First, I cannot agree that the trial court committed reversible error in refusing to compel the witness, Partin, on cross-examination, to answer questions which Partin claimed might tend to incriminate him. As the majority concedes, the trial court has the right in the first instance to decide whether any direct answer to a question would implicate the witness. While the right of the trial judge to make the determination is not absolute, it would appear to me that the trial judge in this case did not abuse his discretion, especially in view of the fact that we do not have a complete transcript of the proceedings and the trial judge was more aware than we of attending circumstances.
It is my opinion that the majority has made the right of an individual not to accuse himself, a right which was placed in our first Constitution, and which has been placed in each successive Constitution, secondary to the right of a party to make a searching cross-examination.
This right not to accuse one’s self, as the majority recognizes, is available to a witness in a civil proceeding. It is also available to a witness who is also a party. In Calhoun v. Thompson, 56 Ala. 166 (1876), this Court said among other things:
“The humane maxim of the law is, that no one is bound to accuse himself. A witness, though a party to the suit, cannot be compelled to answer any question, the answering of which may expose, or tend to expose, him to a criminal charge, or to any kind of punishment.”
In Ex parte Blakey, 240 Ala. 517, 199 So. 857 (1941), cited by the majority, there is a good compilation of the law of this state and other jurisdictions concerning the right of a witness to refuse to answer questions in a civil proceeding when the witness makes claim that the answer to the question might tend to incriminate him.
I think Lockett v. State, 63 Ala. 5 (1879), cited by the majority for the principle that the right of a witness not to accuse himself can be waived is distinguishable. The witness in Lockett was an accomplice and had voluntarily testified for the state about matters, which without question, had implicated the witness. I believe this Court was very careful to point out in Lockett that the rule that a witness waives his right not to accuse himself extends only to questions concerning matters about which the witness has already testified. This Court there said, “For the witness is an accomplice, who is allowed to give evidence in favor of the state, with the express under*370standing that he is to disclose his own guilt."
The narrative of Partin’s testimony which is set out in the majority opinion, in my judgment, does not necessarily show that Partin might be guilty of any crime. Therefore, since he had given no evidence on direct which might tend to incriminate him, the question of waiver does not arise, as I view it. As I understand the testimony of Partin, it tended to establish that he was in Birmingham and vicinity to assist in a strike at the request of appellant’s president and “other gentlemen” in Birmingham. I agree that it is difficult to see how, having admitted that he was in Birmingham at the request of individuals, Partin declined to answer questions seeking the names of individuals he talked to in Birmingham, (he did admit talking to a Mr. Webb of the Birmingham Local over the telephone), but I think we engage in speculation when we assume that the answers would not tend to incriminate Partin.
I respectfully feel the majority engages in speculation when it asks, “Why did the trial court so decide,” that an answer would implicate Partin and further states, “If he (Partin) said anything during the course of his entire testimony which might incriminate him, it was that part of his testimony which related to his participation in that strike.” How do we know this is a fact? The right to claim the privilege first rests with the witness who should know better than anyone else whether the answer to a specific question might tend to implicate him with some criminal charge. When the trial court refuses to compel a witness to testify, as it did here, I think our cases say that this is the prerogative (right) of the court. If Partin had voluntarily testified that he and “other men” in Birmingham had entered into a conspiracy to commit some crime, without question, Lockett, supra, would apply and he could not refuse to name people he had talked to, having waived his right to claim the privilege by reason of the fact that he had testified without protest to facts which would have obviously been incriminating. But those are not the facts of this case. They were the facts of the Lockett case, and that is the reason I think Lockett disinguishable.
In view of what I have said, I do not believe reversible error is shown by the action of the trial court in refusing to compel Partin to answer questions to which Partin claimed a right not to incriminate himself.
The majority also predicates reversible error upon the trial court’s action in sustaining objection to questions propounded to Partin which sought to determine who was in the car with him, and “the names of any officer of any Teamster’s local union” with whom he had talked while in Birmingham. The majority correctly states the rule that the range of cross-examination rests largely in the trial court’s discretion and its rulings thereon will not be revised unless prejudicial error is clearly made to appear, but then concludes that prejudicial error clearly appears in this case. The question, “who was in the car” is certainly quite general and is not limited to time and place. The question asked Partin about the names of individuals in any local union he had talked to was obviously repetitious.1 Therefore, I fail to see how prejudicial error clearly appears as a result of the trial court’s action in sustaining objections to the two questions.
*371Neither do I feel that the trial court committed reversible error in refusing to require Mr. Bradley, one of Partin’s attorneys, to testify that he had advised and informed Partin that two indictments against Partin had been nol prossed.
Appellant states in brief:
“Had appellant not been erroneously denied the right to develop this [that he had been advised by his attorney that the indictments had been nol prossed and whether Partin was advised that the indictments might be reinstated], it may have been presented with the opportunity to exercise its right to impeach Partin by both his own testimony, that of Bradley, and others with proof of the facts and details of a collusive agreement whereby Partin was to enjoy immunity from criminal punishment and financial loss alike.”
Appellee states in brief:
“Not once did the appellant ask Partin about any deals with the plaintiff. Not once did appellant question Bradley, Par-tin’s lawyer, about any deal with anybody.”
Appellee’s statement seems to be a fair assertion of what happened.
Without setting out extensive portions of the record and unduly lengthening this dissenting opinion, I would point out that during the trial of the case and during argument on motion for new trial, it affirmatively appears that the trial judge told appellant’s attorneys that they would be permitted to question Partin “whether it is not a fact that he was told that, if he did not come to Livingston to testify in this case, those indictments would be reinstated or that another indictment would be returned by the Grand Jury against him.” The record before us, insofar as I can determine, does not show that this question which the Court told counsel was permissible was ever asked. On motion for new trial the appellant argued that it determined after the trial that the plaintiff Hatas had written a letter to the Circuit Solicitor before the trial of the case requesting that the indictments against Partin be dismissed. There is no evidence in the record to which our attention had been directed which shows that appellant’s counsel asked Hatas if there was any agreement between her and Partin that if Partin would testify in the case she would request that the indictments be dismissed. In any event, the record shows that the trial judge stated at the hearing on the motion for new trial that evidence that the indictments had been dismissed was before the jury and that appellant’s attorneys argued to the jury that Partin testified in the case for the plaintiff because the indictments against him had been dismissed. I think, therefore, appellant had the benefit of what it now claims to be error to reverse. Consequently, I fail to see how error, if any, sufficient to cause a reversal is made to appear. Error to reverse must be prejudicial.
Additionally, as I understand the law of Alabama, communications between attorneys and their clients are privileged. The majority says that when the attorney advises his client about a matter which is a matter of public record that the privilege must fall. Our statutory mandate is to the effect that no attorney shall be competent to testify about “advice or counsel” given to his clients. Title 7, § 438, Code of Alabama, 1940 (Recomp. 1958). It is interesting to note that the question objected to asked the attorney if he had “advised and informed” Partin that the indictments had been dismissed. I would give force to the statute as, in my judgment, it is written.
The majority, as I understand the opinion, further says that the fact that an indictment had been returned and nol prossed against Partin was admissible in this proceeding to show interest, bias or prejudice on the part of Partin. I do not necessarily disagree with this holding, but I think it completely inapplicable in this case. As already pointed out, the trial judge stated at the hearing on the motion for new trial *372that evidence of the dismissal of the indictments was before the jury and unquestionably counsel admitted that argument was made before the jury that Partin testified as he did because the indictments against him had been dismissed.
Summarizing and concluding, I do not believe that reversible error has been shown by the appellant and I would affirm the judgment of the lower court.
HEFLIN, C. J., concurs.. “Q Two or three days prior to Christmas, in 1961, while you were in Birmingham, I want you to tell me, sir, the names of any officer of any Teamsters local union with whom you talked personally or by telephone on those days? “MR. BRADLEY: May it please your Honor, I object to that. It is repetitious. I can recall having gone over it at least twice by Mr. Bergan, and it has no bearing on this particular case.
THE COURT: Sustain the objection.
MR. PRUITT: We except.
MR. BERGAN: I apologize; I’m not sure I asked this question. If I have asked it, if somebody will refresh my recollection, I will withdraw it.”