State v. Hester , 137 S.C. 145 ( 1926 )

In the opinion of Mr. Justice Blease it is proposed to reverse the judgment of the Circuit Court principally for the following reasons: (1) That the presiding Judge erred in allowing the testimony of Sheriff Rector as to declarations made by Claude Hester, reflecting upon the character of Jerry Hester and Charlie Hester, his father and brother, to remain in the evidence (2) that the presiding Judge erred in the admission of the testimony of the officers as to the conduct of the accused upon the respective occasions of the reading of the Floyd affidavit to them; (3) that the presiding Judge erred in the admission of the testimony of the officers as to the conduct of the accused, at the time of the statement by Floyd to them, of the contents of his affidavits; (4) that the presiding Judge erred in permitting the reading of the Floyd affidavit to the jury; (5) errors in certain detached statements in the Judge's charge.

The disposition by Mr. Justice Blease of the other points in the case, raised by the remaining exceptions, is entirely satisfactory to me, but, differing with him in his conclusions upon the five points above stated, I shall deferentially state the grounds of my dissent in reference to them:

(1) That the presiding Judge erred in allowing the testimony of Sheriff, Rector, as to the declarations made by Claude Hester, reflecting upon the characters of Jerry Hester and Charlie Hester, his father and brother, to remain in the evidence.

This incident in the trial occurred in this way; Rector, the Sheriff, was on the stand as a witness for the State. He proposed to testify to an interview which he had with Claude Hester in the presence of Rogers, the special agent, and Williams, the Pinkerton detective, in the Sheriff's private office in East Court street a few days before the arrest of Jerry Hester. When the Solicitor asked him the question, "What statement did Claude Hester make?" the Court interposed with the remark, "Now understand, that any statement made by him can effect only the man making the statement, and not either of the other defendants." The Sheriff then proceeded to detail statements made by Claude Hester denying his connection with the murder, and tending to establish an alibi for himself. Then this followed (questions by the Sheriff and answers by Claude Hester):

"Well, who do you think killed Mr. Thackston? I don't know. Do you think Charlie and your father did it? I would not put it past them; they are mean enough to do it."

Up to that point no objection had been interposed to the examination of the Sheriff, for the reason, evidently, that it had been of an exculpatory character, so far as Claude Hester was concerned, and of entire ignorance on his part, so far as Jerry Hester and Charlie Hester were concerned. Then the question: "Do you think Charlie and your father did it?" Still no objection; manifestly for the reason that an answer favorable to Jerry and Charlie was expected to come from the son. Counsel for the defendants recovered from their surprise at Claude Hester's answer sufficiently to say, "We object to that, your Honor," without stating the ground of the objection. No ruling was made by the Circuit Judge, and no motion was made to strike it out.

In the case of State v. Ballew, 83 S.C. 82;63 S.E., 688; 64 S.E., 1019; 18 Ann. Cas. 569, quoted in the opinion of Mr. Justice Blease, the Court said:

"The general principle that a party cannot take his chances on a successful issue, reserving vices in the trial, of which he has notice, for use in case of disappointment, is universally recognized and obviously just."

By analogy, counsel has no right, after taking chances upon a favorable reply to an improper question, which he is presumed to know was improper, to object to the surprising and disappointing answer or to move to strike it out.

In view of the preliminary caution given by the Circuit Judge that nothing coming from Claude Hester could be used against the other defendants, of the failure of counsel to object to the testimony, of their manifest apprehension that the answer would be favorable, of their failure to state any ground of objection, and of their failure to move that the objectionable answer be stricken out, I do not think that the assignment of error should be sustained.

It will be observed too, that the main ground upon which this exception is sustained, in the opinion of Mr. Justice Blease is that the alleged declaration of Claude Hester was an effective attack upon the characters of the men, when their reputations had not been put in issue. I find in the exception (11A) nothing which suggests this ground of objection.

2. That the presiding Judge erred in the admission of the testimony of the officers as to the conduct of the accused upon the respective occasions of the reading of the Floyd affidavit to them.

I have been unable to find a suggestion in a single exception which raises the point that testimony as to the conduct of the defendants, in reaction to the reading of the Floyd affidavit, was inadmissible. The only exceptions which refer to the interviews between the officers and the two defendants Jerry Hester and Charlie Hester are the twelfth, thirteenth, fourteenth, fifteenth, and sixteenth.

The twelfth exception assigns error in the "permitting the witness T.E. Williams, a Pinkerton detective, to testify as to certain statements read to the defendants Jerry and Charlie Hester, alleged to have been made by one J.C. Floyd, who was at that time under separate indictment for the same offense, but was not on trial." What the testimony of Williams was with reference to the Floyd affidavit does not appear in the exception, and I have searched the record in vain to find out. Certainly this exception does not cover the admission of testimony as to the conduct of the accused upon hearing the affidavit read.

The thirteenth exception assigns error in "permitting the witness W.W. Rogers to testify over objection that he told the defendants Charlie and Jerry Hester the contents of the Floyd affidavit. Certainly that fact could not have prejudiced the defendants; the prejudice, if any, was the reaction of the defendants to that communication, of which there was evidence. I find nothing in this exception which complains of error in allowing testimony of the conduct of the defendants in reaction to this statement.

The fourteenth exception assigns error in permitting the witness Sheriff Rector "to testify, over objection, that he told Charlie Hester of statements alleged to have been made by J.C. Floyd." The observations as to exception 13 are equally applicable to this exception.

The fifteenth exception assigns error in "permitting the witness, W.W. Rogers, a State detective, to testify to and read the contents of an alleged written statement of one J.C. Floyd." This raises a different question which I shall discuss later. It has no bearing upon the admission of testimony as to the conduct of the defendants in reaction to the reading of the affidavit.

The sixteenth exception assigns error in permitting the witness Sheriff Rector "to testify to the contents of a written statement of one J.C. Floyd, * * * alleged to have been read to the defendants Charlie Hester and Jerry Hester." This exception is as far from raising the question of the admissibility of testimony as to the conduct of the defendants as any one of the other four.

In addition, it will be observed that exceptions 12, 13, 15 and 16 are clearly in violation of Rule 4, subdivision 6, which requires each exception to contain a concise statement of one proposition of law or fact. Each of them contains a double assignment of error, relating to the admission of testimony which affected the two defendants, events which occurred separately and at different times.

3. That the presiding Judge erred in the admission of the testimony of the officers as to the conduct of the accused at the time of the statements of Floyd to them of the contents of his affidavit.

There is less support in the exceptions, to which reference has been made above, for this contention than that just discussed. There was not even a complaint that testimony was received of Floyd's repetition of the facts in his affidavit to the defendants, much less of the admission of testimony as to the conduct of the defendants in reaction to the verbal statements of Floyd.

4. That the presiding Judge erred in permitting the reading of the Floyd affidavit to the jury.

If it was admissible to prove that the Floyd affidavit was read to the defendants, and their reaction thereto, it was necessary to read the affidavit to the jury as the foundation of the admissibility of the evidence of reaction to show that an accusation of crime had been made directly to the defendants as much so as proof of the oral statement of Floyd to substantially the same effect; not as original evidence of the matters stated in the affidavit, which may have been entirely false or obtained improperly, but as the best evidence of the accusation. The fact that the jury may have considered it as original evidence does not affect its admissibility, for the legitimate purpose indicated. This result might well be prevented by the Court's instruction. See Green v. Atlantic Coast Line R. Co. (S.C.),134 S.E., 385.

In the case of State v. Carroll, 30 S.C. 85; 8 S.E., 433; 14 Am. St. Rep., 883, the defendant was charged with adultery. Prior to his arrest, a number of the citizens of St. Matthews, where the defendant resided, held a meeting, and passed certain resolutions in reference to his conduct. These resolutions were transmitted to the defendant. He replied by letter pledging himself to abandon his relations with the woman. Upon his trial the resolutions and his reply were introduced in evidence. Upon exceptions raising objection to the admissibility of the resolutions, the Court said:

"We do not suppose there can be a doubt that, if the persons composing the public meeting, or some of them, had gone to the appellant and verbally made to him the statements embodied in the resolutions, to which he had verbally replied in the terms of his letter, it would have been competent to prove what passed between the parties, provided the statements made by defendant were not extorted from him by something amounting to the legal idea of duress. If so, then we are unable to perceive why the communications, which happened to be in writing, should not be quite as good, if not better, testimony than the verbal statements."

I do not think that the circumstances under which the affidavit of Floyd was obtained affects at all the obligation of the defendants to reply to it, nor do I think that the reading of the affidavit on the trial impinges at all upon the constitutional right of the accused to be confronted with the witnesses against him. The point at issue was not the truth of the affidavit; it was not offered in evidence; but the point was the reaction of the defendant after hearing it read.

5. Errors in certain detached statements in the Judge's charge.

The Circuit Judge did more, in the interest of the defendants, than he was required to do. In both the Sudduth andGoodwin cases, this Court has held that, as in the matter of express confessions, it is the province of the Judge to decide in the first instance, in cases of alleged implied confessions, whether the circumstances surrounding the accused were such as to make his silence of any significance at all. He may decide that issue and admit the evidence, and leave the force and effect of it to the jury, or he may, as the Circuit Judge did in this case, admit the evidence and leave to the jury both questions whether the silence of the accused was under such circumstances as justified its admission and its force and effect if so found. I think that the Circuit Judge as clearly and fairly presented the law as could possibly have been done, in conformity with the principles which I shall hereinafter discuss.

I am reluctant, however, in a case of such momentous consequences to the defendants, sentenced to death, to base my conclusions upon the technical grounds above indicated, and will consider the objections to the validity of the conviction, urged by Mr. Justice Blease, as if they had been properly submitted to this Court, with extended reference particularly to the propositions advanced by him that there was error: (1) On the part of the Circuit Judge in admitting the evidence to the effect that the affidavit of Floyd was read to the defendants, and of their reaction thereto; (2) on the part of the Circuit Judge in admitting the evidence of Floyd's verbal accusation of the defendants, and of their reaction thereto.

The circumstances attending the interview between the officers and Jerry Hester, at which the affidavit of Floyd was read to him and the verbal statements by Floyd were made to him, were as follows:

About a week after the murder of Thackston, Jerry Hester was arrested at his home, after midnight. He was taken to the private office of the Sheriff on Court street in the City of Greenville. There were present the Sheriff, Rector, the special State agent, Rogers, and a Pinkerton detective, Williams, who had been employed by the family. In the meantime a written statement, in the form of an affidavit, had been procured from one J.C. Floyd. It gave an account of Floyd's connection with the crime and a direct charge of the defendant's planning and executing the murder. At the interview referred to, Rogers, the State agent, read the Floyd affidavit in full to Jerry Hester. Rogers testified that, after the reading of the affidavit to Jerry Hester, "He never opened his mouth, only hung his head. He sat there for approximately 5 or 8 minutes. I says: `Well you have got nothing to say?' He hesitated again, casually throwed his hands and says: `I will tell my tale when I get in' Court.'" Floyd, who was at the time under arrest for the crime and in jail, was sent for. After Floyd had been ushered into the presence of Jerry Hester, according to the testimony of the same witness, Rogers: "I told him, `Now Capt. Jerry, here is Mr. Floyd. I have read you his statement; any questions you want to ask him about it?' At first he said, `No.' Mr. Floyd got to talking with him then, and practically repeated the whole thing to Jerry." Upon being asked "what was his manner as Floyd came in?" the witness answered, "Just kinder wilted down, and he never disputed it with Floyd." Floyd practically went over the matters contained in his affidavit to Jerry Hester, and told him that he knew everything he had said was true. Jerry Hester made no denial to this statement. The witness was asked, "What was his manner?" and replied: "Just sitting there with his head hanging down. Don't think he looked at him (Floyd) much."

The correct practice in reference to the admission of evidence tending to show the silence of the defendant under an accusation of crime is clearly defined in the case of Statev. Sudduth, 74 S.C. 498; 54 S.E., 1013:

"Two questions always arise as to the effect of silence under accusation: First, are the circumstances surrounding the accused such as to make his silence of any significance at all? This is a question of fact to be decided by the Circuit Judge, and his conclusion will not be disturbed by this Court, unless without any reasonable support."

In State v. Goodwin, 127 S.C. 107; 120 S.E., 496, it is said:

"The admission of such evidence is strongly assimilated to the admission of a confession; in fact, it is sometimes spoken of as an implied confession. When a confession is offered as voluntary, the question of whether or not it is voluntary must be determined, in the first instance, by the presiding Judge."

And:

"The question now for decision is whether or not the presiding Judge correctly decided, in the first instance, that the testimony under the circumstances, was of sufficient significance to justify a consideration of it from any angle by the jury."

So the turning point of this inquiry is whether, in the first instance, the presiding Judge correctly decided that the testimony, under the circumstances, was of sufficient significance to justify a consideration of it, from any angle, by the jury.

Upon this question I have not the slightest doubt. Whilst it is true that the defendant was under arrest at the time, the evidence does not disclose the slightest improper conduct on the part of the officers who had him in charge. Their most commendable purpose appears to have been to learn and apprehend the perpetrators of this dastardly, cowardly murder for robbery; a purpose which I do not think should be readily thwarted or constricted.

In his opinion Mr. Justice Blease declares:

"We have no intention of criticizing the conduct of the officers, and in many respects they are to be commended for their zeal and persistence in attempting to ferret out those who were guilty of the cruel murder of Mr. Thackston."

So we start with the irreproachable conduct of the officers, and with the presumption in favor of the presiding Judge's ruling, which should be reversed only upon a very decided conviction on the part of this Court, that it was "without any reasonable support," in the language of the Sudduthcase, above quoted.

I think that it is only necessary to read the very clear and fair abstract of the testimony contained in the opinion of Mr. Justice Blease to be convinced that there were material circumstances in connection with the statements made by the defendant, upon which the inadmissibility of the testimony is placed, that justified the presiding Judge in admitting the testimony, and submitting the whole matter to the jury. The circumstances which I think fully justified the ruling of the presiding Judge were these: After the Floyd affidavit was read to Jerry Hester, "he never opened his mouth, only hung his head. He sat there for approximately 5 or 8 minutes. I says. `Well, you have got nothing to say?' He hesitated again, casually throwed his hands, and says. `I will tell my tale when I get in Court.'" If this belated statement shall be relied upon as effectually neutralizing the effect of the testimony, it seems only fair to consider along with it the circumstances which preceded it. Certainly such belated statement, preceded by his extraordinary demeanor, always indicative of overwhelming consciousness of guilt, should not be allowed the same effect as if it had been promptly and spontaneously made. After Floyd had come in and made a statement to Jerry Hester, repeating the substance of this affidavit directly to Jerry Hester, he "just kinder wilted down and never disputed it with Floyd." Floyd went over his statement, and told Jerry Hester that he (Jerry) knew that everything he (Floyd) had said was true, and that Jerry made no denial; "he was just sitting there with his heading down. Don't think he looked at him (Floyd) much."

The circumstances of the interview meet all the requirements laid down in the extract from Greenleaf on Evidence, quoted in the Sudduth case, and in the decision of this Court in the Goodwin case. They show the act of the mind, the conduct of the party, that he knew what he was doing, that he fully understood the statement read to him, that he was not only afforded an opportunity to act or speak, but urged to do so, and were such as properly and naturally called for some action or reply from a man similarly situated. The evidence was of direct declarations of that kind which naturally calls for contradiction. The statements were directly addressed to him. He was fully aware of his right to reply to them and presumptively of the consequences of his not doing so. He had the opportunity to reply. He was not overwhelmed by fear, distress, or the belief that nothing he could say would avail. He was not only expected to reply, but urged to do so. He could not have been under any apprehension that a simple denial would have been distorted either intentionally or by frailty of memory. If the officers had had any intention to falsely report his reply or conduct, they had every opportunity to do so, which manifestly they did not avail themselves of.

Two theories are suggested in the opinion of Mr. Justice Blease, upon which the execution of the testimony should be sustained. It is not clear that he has committed himself to either theory, although there are indications that he approves one or both. Certain it is that the adoption of one or the other can be the only justification for the exclusion. They are: (1) That under the case of State v.Edwards, 13 S.C. 30, a man accused of crime, under all circumstances, has the right to stand mute, and that for that reason his silence is not a fact which the jury is entitled to weigh against him; (2) that the fact that a person is under arrest, in the custody of officers, prevents his silence or the statements themselves from being admissible against him, on the ground that under such circumstances he is not called upon to speak.

As to the first theory: The matrix of this theory may be found in the case of State v. Edwards, 13 S.C. 30. It was not necessary to a decision in that case, and I do not believe that it can be found anywhere else. There the Circuit Judge charged the jury "that if a party hears a criminal charge against himself, and made in his presence, and says nothing, it is an admission on his part, and, in the eye of the law, the party accepts that charge as his confession." As a matter of course this charge could not have been sustained. The Court held it error, saying:

"The effect of this charge was to give the silence of the parties the legal force and effect of confession of guilt," — and followed with this statement:

"It must in this respect be distinguished from the proposition that the conduct of parties under accusation of crime may be given to the jury, as circumstances to be weighed in connection with the question of guilt or innocence."

Up to this point the opinion is free from criticism. The law was properly declared that the defendant's silence under accusation was not, per se, a confession of guilt, but was a circumstances to be considered by the jury. What follows has produced some confusion:

"To give the silence of parties such legal effect (that is, the admission of guilt) is equivalent to holding that every person accused of crime by any person, regardless of time, place, or circumstances, is bound to deny such accusation and affirm his innocence. It is clear that the law imposes no such obligation on a party accused; but, on the contrary, it is his right to stand mute, and the burden of showing the guilt is on those that make the accusation."

What this means, as I understand it, taken in connection with the portion of the opinion above quoted, is that, while he may have the legal right to stand mute, his conduct in standing mute may be given to the jury as a circumstance to be weighed in connection with the question of guilt or innocence. The defendant Jerry Hester had the legal right to "wilt," to hang his head, to squirm and twist, to avert his eyes from the accusing Floyd. The fact that he had such legal right does not militate against the admission of the evidence. He had the legal right to make a full confession. I do not apprehend that, because in doing so he was exercising a legal right, evidence of the confession would be inadmissible. If the decision means that because he had the legal right to stand mute, evidence of that fact is inadmissible. If the decision means that because he had the legal right to stand mute, evidence of that fact is inadmissible, it is plainly inconsistent with the previous paragraph, and opposed to the overwhelming weight of authority.

"Where on being accused of crime, with full liberty to speak, one remains silent, his failure to reply or to deny is relevant as tending to show his guilt, and the accusatory or incriminating statement is admissible, not as evidence of the truth of the facts stated, but to show accused's admission by silence. Silence alone, however, raises no legal presumption of guilt. Its effect is for the jury, and from it, in connection with other facts and circumstances, they may infer that accused is guilty." 16 C.J., 629.

In State v. Stone, Rice 147, the following charge was approved by the Court:

"When a man was charged with a crime, and did not deny it, we should be usually led to conclude that he was guilty, on the principle of the old adage, `silence gives consent.'"

In State v. Major, 70 S.C. 387; 50 S.E., 13, it is said:

"While silence under accusation of crime cannot have the legal effect of the confession of guilt, it is nevertheless a circumstance to go to a jury on a question of his guilt or innocence."

In the case of State v. Senn, 32 S.C. 392; 11 S.E., 292, the statement which the State offered to prove as having been made in the presence of the defendant, to which he made no reply, was made in a judicial examination, and was held inadmissible. The case has but little bearing upon the issues in the case at bar other than that it states the general rule of silence under accusation of crime.

"The conduct of parties under accusation for crime may be given to the jury as circumstances to be weighed in connection with the question of guilt or innocence." Statev. Major, 70 S.C. 387; 50 S.E., 13.

In State v. Sudduth, 74 S.C. 498; 54 S.E., 1013, the principle is recognized that silence under accusation of crime is a circumstance to be submitted to the jury as tending to show the guilt of the defendant.

In State v. McIntosh, 94 S.C. 439; 78 S.E., 327, the Court said:

"Statements made in the presence of a party are generally admissible, if he remains silent when they are made, and the circumstances are such that he can speak, and naturally would or ought to respond to them. In such circumstances his silence may afford ground for inferring that he acquiesces in the truth of the statements."

"So, also, if he positively and unequivocally denies the truth of such statements, * * * they are inadmissible."State v. McIntosh, 94 S.C. 439; 78 S.E., 327.

In the case of State v. Goodwin, 127 S.C. 107, the testimony of the defendant's silence under accusation was excluded, not upon the ground that he had the legal right to stand mute, but upon the ground that the accusation was not made under circumstances that called for a reply by the defendant, by implication recognizing the general rule above stated.

"The manner, the demeanor, of a party when accused of crime, as well as his silence in such circumstances, when, if not guilty, truth born of indignant innocence would naturally impel him to speak, are always fit subjects to be brought before the jury as inculpatory circumstances, of whose probative force the triers of the fact must judge." Statev. Hill, 134 Mo., 663; 36 S.W. 223.

In not one of the South Carolina cases, since the case ofState v. Edwards was decided, has it been declared that the defendant, under accusation of crime, has the right to stand mute, or that that right makes the fact of his standing mute inadmissible. In every one of them it is declared that, if the accusation is made to him directly or in his presence, under circumstances which naturally call for a reply, with the opportunity of replying, the fact, of silence may be offered in evidence as an indication of his guilt for the jury to pass upon.

"Silence of defendant, when accusatory statement is read to him and he is given opportunity to reply, held proper evidence indicating admission of guilt." People v. Egan (Cal.App.), 246 P., 337.

"It has become a well-established rule that when a defendant, under conditions which fairly afford him an opportunity to reply, stands mute in the face of an accusation of crime, the circumstance of his silence may be taken against him as evidence indicating an admission of guilt." People v. Bringhurst,192 Cal., 748; 221 P., 897.

"Where a charge is made in the presence and hearing of a person accusing him of a crime, his silence or failure to contradict or explain the statement, may be shown as being in the nature of an admission of the truth of such statements, providing the circumstances are such as to afford him an opportunity to speak and such as would naturally call for some action or reply from persons similarly situated."Diamond v. State, 195 Ind., 285; 144 N.E., 250, 466.

In Steele v. State, 19 Ala. App., 598; 99 So., 745, it was held that, when the defendant made no response to the statement of the deceased accusing him, but dropped his head and looked the other way, his silence and demeanor were both the subject of evidence.

As to the second theory that the circumstances that the defendant is under arrest and is being interrogated by the officers having him in custody, his silence will not justify the admission of the accusation or of his reaction thereto.

This presents a most serious proposition — serious to the defendant, and serious to the administration of justice in the detection of crime. To sustain it will hamper the legitimate efforts of assiduous officers, and may lead to the escape of many red-handed murderers.

It must be remembered that in the case at bar there is no evidence of any improper conduct on the part of the officers who had the defendants Jerry Hester and Charlie Hester, at different times, under investigation. In fact, as has been adverted to, in the opinion of Mr. Justice Blease, they are not only relieved of all criticism, but actually commended for their zeal and persistence. That being conceded, I cannot see any reason for a distinction between officers engaged in a proper and commendable effort to discover the perpetrators of an awful crime and persons who are not officers of the law, so far as the admission of the evidence is concerned. I can well understand that the force and effect of the evidence, in the minds of the jury, after its reception, of course, may be weakened or entirely fail, if the conduct of the officers be shown to have been such as to deprive the defendants of the right, duty, or opportunity to reply, but that should not affect its admissibility.

In 16 C.J., 633, it is said:

"Some of the Courts have held that the fact that one is under arrest and in the custody of an officer, when he is silent under an accusation, prevents his silence or the statements themselves from being admissible against him on the ground that under such circumstances he is not called upon to speak."

To sustain this proposition 29 cases from the Circuit Court of appeals, Iowa, Kentucky, Louisiana, Massachusetts, Missouri, Oklahoma, Rhode Island, Texas, and Quebec, are cited. I have personally examined 27 of them, and, with the exception of 3, they present instances of declarations, not made to the accused, but to officers in his presence. The excepted cases are simply instances of the accused's failure to answer questions put to him by the officers. Not one presents an instance like the case at bar where the statements were made directly to the defendants, calling for answers, and with every opportunity to answer open to them.

In connection with the above quotation from C.J., is the following:

"Other Courts have held that this circumstance alone does not render the evidence inadmissible, and that an accusation of crime calls for reply even from a person under arrest or in the custody of an officer, where the circumstances surrounding him indicated that he is free to answer if he chooses to do so."

This proposition is sustained by cases from Alabama, Arkansas, California, New York, Ohio, Tennessee, West Virginia, and Michigan, and in my opinion is the better rule; the circumstances of being under arrest and the accusation not being directly made to the defendant being left to the jury to determine whether he was then called upon to make reply.

In State v. Booker, 68 W. Va., 869 S.E., 295, it was held:

"Unrefuted evidence of silence by one when charged with a crime in his hearing by his coindictee, though the party remaining silent be under arrest or in custody, is admissible for the consideration of the jury when the circumstances are such that an innocent man similarly situated would naturally speak in denial."

"Evidence as to accusatory statements made in acccused's presence naturally calling for a reply, and not replied to, was not inadmissible because accused at the time was in custody."Simmons v. State, 7 Ala., App. 107; 61 So., 466; Peoplev. Amaya, 134 Cal., 531; 66 P., 794; State v. Guffey,39 S.D., 84; 163 N.W., 679.

In People v. Sullivan, 3 Cal., App. 502; 86 P., 834, the defendant was under arrest, in the custody of several policemen who carried him to the hospital where the man who later died was on the operating table. The wounded man made statements incriminating the defendant, who made no reply. Held, that the testimony as to such statements and the silence of the defendant was admissible. The Court said:

"It has been held that silence, when a party is under arrest, does not sustain the hypothesis of acquiescence, because the party is not free to speak. But our Supreme Court holds that an accusation of crime does call for a reply, even from a person under arrest."

Even in cases of express, as distinguished from this class of implied, confessions, where the rule naturally would be stricter, it has been frequently held by the United States Supreme Court that the fact that the defendant was under arrest, in the custody of officers, and even in irons, does not render the confession inadmissible.

In the case of Sparf v. U.S., 156 U.S. 51; 715;15 S.Ct., 273; 39 L.Ed., 343; the defendants were in irons on a ship, arrested and charged with murder. One of the defendants confessed in the presence of the defendant, Sparf. The Court held:

"The declarations of Hansen after the killing, as detailed by Green and Larsen, were also admissible in evidence against Sparf, because they appear to have been made in his presence and under such circumstances as would warrant the inference that he would naturally have contradicted them if he did not assent to their truth."

"The fact that he is in custody and manacled does not necessarily render his statement involuntary." Wilson v.U.S., 162 U.S. 613; 16 S.Ct., 895; 40 L.Ed., 1090.

"The admission of certain statements made by the defendants while they were under arrest and handcuffed was also objected to. * * * Confessions are not rendered inadmissible by the fact that the parties are in custody, provided that such confessions are not extorted by inducements or threats." Pierce v. U.S., 160 U.S. 355; 16 S.Ct., 321;40 L.Ed., 454.

"It is true that the fact of a prisoner being in custody at the time he makes a confession is a circumstance not to be overlooked, because it bears upon the inquiry whether the confession was voluntarily made or was extorted by threats or violence or made under the influence of fear. But confinement or imprisonment is not in itself sufficient to justify the exclusion of a confession, if it appears to have been voluntary, and was not obtained by putting the prisoner in fear or by promises." Sparf v. U.S., 156 U.S. 51; 715;15 S.Ct., 273; 39 L.Ed., 343.

"In this Court also it has been settled that the mere fact that the confession is made to a police officer, while the accused was under arrest in or out of prison, or was drawn out by his questions, does not necessarily render the confession involuntary, but, as one of the circumstances, such imprisonment or interrogation may be taken into account in determining whether or not the statements of the prisoner were voluntary." Bram v. U.S., 168 U.S. 532;18 S.Ct., 183; 42 L.Ed., 568.

"So far as appears, there was nothing in the circumstances under which Bilokumsky was examined which would have rendered his answer inadmissible even in a criminal case. The mere fact that it was given while he was in confinement would not make it so." Bilokumsky v. U.S.,263 U.S. 149; 44 S.Ct., 54; 68 L.Ed., 221.

"A confession may have been given voluntarily, although it was made to police officers while the maker was in custody, and in answer to an examination conducted by them."Ziang Sung Wan v. U.S., 266 U.S. 1; 45 S.Ct., 1;69 L.Ed., 131.

If Jerry Hester had calmly stated in the first instance: "I will tell my tale in Court," that would have effectually blocked the introduction of the evidence. But he did not do so. He sat silent under the dreadful charge, with his head hung down, and only used the expression referred to when he was urged to make some reply. Certainly his conduct before making the statement was admissible for the consideration of the jury upon the sincerity of his later remark. They may have considered it an evasion which, under the circumstances, did not mitigate the effect of his damning silence and conduct indicative of guilt. The great virtue of a denial upon accusation of crime is its spontaneity.

In Price v. U.S. (C.C.A.), 5 F.2d 650, it was held that, when the defendant was silent under an accusation, and later denied the charge, the fact of his initial silence might be proved as effecting the weight of his later denial.

The circumstances attending the interview between the officers and Charlie Hester, at which the affidavit of Floyd was read to him, and the verbal statements by Floyd were made to him, were practically identical with that between the officers and Jerry Hester: The morning after the interview with Jerry Hester, being under arrest for the crime, was taken to the private office of the Sheriff on Court street. There were present the same officers. The Floyd affidavit was read to him by Rogers, who testified that when it was finished, "And he (Charlie) never opened his mouth." Floyd was sent for from the jail, and after he came "went over the whole thing, and Floyd made the statement to him (Charlie Hester) about meeting him as he and his brother Cromer was going out"; that Charlie asked Floyd, "Are you sure you met me?" and Floyd replied: "You know that I met you"; that Floyd "accused him of it just exactly what is in that statement, and Charlie sat there." The Sheriff then went over and touched Charlie, and said, "Look here, boy, are you going to lay there and let a man accuse you of murder and send you to the electric chair, and you never resent it or never say a blessed word?" and in a few minutes Charlie looked at Floyd and said, "You are a liar." Floyd replied with heat, and said, "You know I am telling the truth," to which Charlie made no reply. Certainly, as in the case of Jerry, such a belated statement, as a denial, preceded and followed by his silence, indicative of guilt, should not be allowed the same effect as if it had been promptly and spontaneously made as the natural reaction to such a bloody charge.

If Charlie Hester had promptly denied the statements made by Floyd, I think that there would have been just ground for excluding the testimony. He did not do so until he was importuned to say something. Then his reaction from the stunning disclosure of Floyd, overwhelming him with a consciousness of guilt into silence, had had time to take effect, and the propriety of denial had become apparent. Surely the jury had the right to consider, not only the denial, but the circumstances under which it was made. They had the right to assume that an innocent man, under such a damning charge, would have instantly and indignantly denied it.

The circumstances justifying the Circuit Judge in first admitting the reading of the affidavit and the verbal accusation by Floyd are equally as strong as in the case of Jerry Hester. It is significant, very, that, after hearing Floyd's affidavit read, Charlie had no comment as to its damning impeachment than the trifling question, "Are you sure you met me?" It certainly cannot be said that the primal decision of the Circuit Judge to receive the evidence was "without any reasonable support."

The case strongly relied upon by Mr. Justice Blease (O'Hearn v. State, 79 Neb. 513; 113 N.W., 130; 25 L.R.A. [N.S.] 542) is an exceedingly interesting one, and ably discussed in the opinion by Justice Letton. It has, however, marked circumstances of distinction from the case at bar. There the affidavit of one of the conspirators was read in the presence of the defendant, not directly to him as in the case at bar; and when, after it had been read, the defendant was asked by one of the officers if he wanted to make any statement in regard to it, he promptly replied that he did not, that he would make his statement at the proper time, or that he would stand trial and tell his story then, as the witnesses variously testified. It seems strange that there could have been any doubt as to the inadmissibility of the evidence under these circumstances, as the Court said:

"The fact that the defendant reserved his statement until some future time is far from giving countenance to the idea that he thereby assented to the statement which had been read in his hearing. So far from giving color to the idea of assent, it rather conveys to an unprejudiced mind the idea of dissent and the intention to tell the true facts himself."

This certainly cannot be said of the conduct of either of the defendants in this case.

The O'Hearn case is interesting from another view. Upon the question of silence in the presence of officers having defendant in custody, the Court says:

"While the presumptions are against the theory that the silence of a prisoner gives his assent to statements made in his presence, accusing him of crime, it is unnecessary to decide in this case that in no event and under no circumstances can a tacit admission of the truth of a statement made against his in his presence be made by a person under arrest for a crime."

I am of opinion that the judgment should be affirmed.