Parrott v. State
125 Tenn. 1
Tenn.
1911
Check Treatment
Me. Justice Neil

delivered the opinion of the Court.

The plaintiff in error being on trial in the circuit court of McMinn county under a charge of selling intoxicating liquors within four miles оf an institution of learning in violation of the statute against such acts, evidence was introduced, over his objeсtion, as follows: On cross-examination he was asked if Jоe Taylor did not testify before a United States commissiоner in his presence and hearing that he had sold whisky to said ‍​​‌​‌‌‌​‌​‌​‌​‌‌​‌​​​​​​‌​‌​​​​​​‌‌‌​‌‌​​​​​​‌​​‍Taylor, and further if he did not fail to go on the witness stand and dеny it; also, the same question as to Ham Hacker; also, whether Ham Hacker had not téstified before a justicе of the peace on a committing trial the. same thing in his presence, with a like failure on his part to go оn the witness stand and deny it — to all of which questions he answered, “Yes.” On this evidence the trial judge charged the jury as follоws:

“Gentlemen of the jury: I instruct you that it is competent in any сase to prove that a statement has been made in the presence of the defendant, by which the dеfendant is accused of wrongdoing, and that the defendant admitted the truth of the statement ‍​​‌​‌‌‌​‌​‌​‌​‌‌​‌​​​​​​‌​‌​​​​​​‌‌‌​‌‌​​​​​​‌​​‍or remained silent failing to deny it. And in this case if you should be satisfied from the evidence that witnesses at other trials had testified that the defendant did that which he now denies, and that he was present, and failed to then deny *4the charge, this would he a circumstance which you could look to, giving to it such credit as you think it is еntitled to as throwing light ‍​​‌​‌‌‌​‌​‌​‌​‌‌​‌​​​​​​‌​‌​​​​​​‌‌‌​‌‌​​​​​​‌​​‍on the defendant’s guilt or innocence in the present case, but you cannot look to it fоr any purpose than those hereinbefore indicated.”

The evidence was incompetent, and the charge was erroneous. The rule that statements made in the presence of an accused person charging him with ‍​​‌​‌‌‌​‌​‌​‌​‌‌​‌​​​​​​‌​‌​​​​​​‌‌‌​‌‌​​​​​​‌​​‍crime create a presumption against him, if not denied by him, does not apply to such statements made in the course of judicial proceedings. Bell v. State, 93 Ga., 557, 19 S. E., 244; State v. Mullins, 101 Mo., 514, 517, 14 S. W., 625; State v. Hale, 156 Mo., 102, 107, 108, 56 S. W., 881; Comstock v. State, 14 Neb., 205, 15 N. W., 355; People v. Willett, 92 N. Y., 29; Maloney v. State, 91 Ark., 485, 491, 121 S. W., 728, 134 Am. St. Rep., 83; Com. v. Zorambo, 205 Pa., 109, 54 Atl., 716; Broyles v. State, 47 Ind., 251; State v. Senn, 32 S. C., 392, 11 S. E., 292; State v. Boyle, 13 R. I., 537. If the рarty in question be on trial, he cannot thus be forced tо give evidence against himself in violation of the cоnstitutional guaranty which protects him against incriminating himself contrary to his will. If the trial in progress be one in which he is not dirеctly concerned, as for example a cоroner’s ‍​​‌​‌‌‌​‌​‌​‌​‌‌​‌​​​​​​‌​‌​​​​​​‌‌‌​‌‌​​​​​​‌​​‍inquest, one of the cases above cited, he has no right to interfere or intrude therein, and is not called upon to speak, and his failure to speak cannot in subsequent direct proceedings against him afford any presumption of acquiescence. If in any former trial he was justified in refraining from speaking by the constitu*5tional provision above referred to, be rightly refrainеd, and Ms conduct should not he used against him in any subsequent trial. To grant its use would practi-. eally nullify the constitutional provision. Therefore in no event is such evidence competent against him.

For the error indicated, the judgment of conviction will be reversed, and the cause remanded for a new trial.