First. It is thе duty of counsel for an appellant in preparing a case-made or transcript of the record to at *523 tach to it an index of all it contains, and this index should contain the name of each witness and the page upon- which his testimony will be found. This was not done in the case now before us, and has caused a great waste of time to the court in preparing the opinion. It is also the duty of counsel for an appellant in preparing their briefs to cite the page of the transcript of the reсord upon which they rely to support their assignments of error. This was not done in the brief now before us. We have, therefore, been compelled to waste several hours in hunting through the transcript of the record to verify statements made in the brief. We call the attention of all lawyers in Oklahoma to this matter. Nо transcript of the record or brief is complete which contains these-omissions. It is the duty of counsel for an appellant to assist the court, and not so prepare their transcripts of the record and briefs as to give the court additional and unnecessary labor.
Second'. We will only discuss 'one question presented in the brief of counsel for appellant. George Eayton was a witness for the stаte. Upon the trial, among other things, he testified that ■on the night after the homicide Sam Hartshorne and himself as officers placed the appellant, Pat Ellis, and his co-defendant, Will Byars, under arrest, and carried them in a two-seated hack to the town of Wanette; that appellant and Hartshorne sat on thе front seat of the hack, and that Will Byars and the witness sat on the back seat of the hack; that while they wеre on the road the following occurred: “A. Bill Byars .said, T do not see what made that fellow do that shooting — kill Mr. Snap;’ and I said, ‘What fellow are you talking about?’ and he said, ‘Pat Ellis.’ Q. What did Pat say to that? A. He made no reрly.” To all of which counsel for appellant objected and excepted at the time. This evidеnce was undoubtedly admissible as against Will Byars, but its admissibility against Pat Ellis presents an entirely different question.
Wharton оn Criminal Evidence, sec. 680, lays down the rule as follows:
“To give silence, however, effect as an admission, the party ■charged with it must have been in a position to explain. Before acquiescencе in the language of others can be used or as-. *524 sumed as a confession of the truth of any particulаr statement or the existence of any particular fact, it must plainly appear that the languаge was heard and the conduct understood. Thus neither a person asleep nor when intoxicated, or a deaf person, can be in this way prejudiced by statements made in his presence, * * * nor cаn silence when a party is under arrest.”
Judge Hurt, of the Court of Criminal Appeals of Texas, in the case оf
Gardner v. State,
“A person held in custody on a charge of crime is not called upon to contradict statements prejudicial to him, made in his presence by another person, in answer to inquiries made by an officеr; and such statements, though not contradicted by him, are not admissible in evidence against him.”
And, after reviewing the authorities, says:
“We deem the authorities sufficient to support the rule that, if the party is under arrest, silence cannot be used to support the hypothesis of consent to statements made in his presence by others.”
Even if it be admitted that thе appellant heard the statements of Will Byars, of which there is no proof, we do not think that the statеments of Will Byars under the circumstances should be admitted as evidence against appellant. Our Constitutiоn provides that:
“No person shall be compelled to give evidence which will tend to incriminate him, еxcept as in this Constitution expressly provided.” (See section 29, Williams’ Const, of Okla.) ■
If it be admitted that, while a рerson is under arrest, his failure to reply to statements made in his presence can be construed as an admission of the truthfulness of such statements, then the state would be able to do indirectly what the Constitution еxpressly provides it shall not do directly. This question was practically decided in the case of
Gillespie v. State,
“To permit a demand to be made on a defendant in a criminal case, in thе presence of a jury, to produce a paper or document referred to, containing incriminating evidence against him, is a violation of the immunity secured to him by section 21 of article 2 of our Cоnstitution, providing that no person in a crim *525 inal case shall be compelled to give evidence аgainst himself which will tend to incriminate him, even though no order for the production of the paper is made.”
See, also,
Vaughn v. State,
We think that this is decisive of this case. The illegal evidence admitted was material and went directly to thе question of the guilt of appellant, and could not, if believed by the jury, have done otherwise than resultеd in his conviction. Its admission could not therefore be regarded as harmless error.
For the error above pointed out, the judgment of the lower court is reversed, and the cause is remanded for a new trial.