65 So. 882 | Miss. | 1914
Lead Opinion
delievered the opinion of the court.
Appellant was convicted of the murder of Julius Bee and appeals. His wife was also convicted of the same crime before appellant was tried. Some weeks since this case was affirmed without an opinion. The case is here now on suggestion of error.
After the conviction of Mrs. Riley, she and her husband, appellant, were confined in jail together with a number of other persons charged with crime. Ovér the objections of appellant, the trial court permitted several of the inmates of the jail to testify that they
“Hush, Bessie, if you go to the penitentiary, you won’t be gone over six months before you get a pardon. If they convict me, they will hang me. ’ ’
The conversation as related by the state’s witnesses varied somewhat, but what has been stated is substantially the evidence of all.
It is contended by appellant that, inasmuch as the wife could not have been introduced to testify that she had charged defendant with the crime and he did not deny the charge, it follows that others could not be introduced to testifv to this charge, citing Pearson v. State, 97 Miss. 841, 53 So. 689.
Again, it is insisted that defendant was not called upon to deny what his wife said under the circumstances.
The rule and the reasons for admitting testimony of this kind is clearly stated in 1 Encyclopedia of Evidence, p.367, viz.:
‘ ‘ So the .silence of a party when a statement is made in his presence, against his interest, and is heard and understood by him, and it made in such way to call upon him to deny it, if untrue, and the facts are within his knowledge, and the statement is made under such circumstances as naturally to call for a reply, amounts to an admission of the truth of the statement 'made, and may be sufficient to establish the fact ás ¿gainst him.”
We do not understand that the court in the Pearson case condemned the evidence because of the incompetency of the wife to testify against her husband, but for the reason that the statement made by her was purely hearsay.
All of the evidence here in question shows that the defendant was sympathizing with his wife and was trying to comfort her with the assurance that she would soon be released. She was naturally hysterical and much depressed. Under these circumstances, was the defendant called upon to repudiate what his wife said to him? Was the charge “made in such a way as to call upon him to deny it”?
It is not always conducive to domestic peace for a husband'to contradict the statements of his wife, and ordinarily the wise husband attempts to soothe and placate his irate spouse, rather than to question her statements, however wide of the truth they may be. A few husbands are brave or foolhardy, and at all hazards risk the consequences; but the law does not fix rules for the guidance of the superman, but all rules are adopted for the average. Of course, a judge far away from “the firing line” incurs no immediate danger bv lining up with the superman, but we who are fashioned in the average mold shrink from even that form of bravado. Speaking for the average man, we are of opinion that appellant was not called upon to deny the statement of his wife, made under the circumstances surrounding them at the time. His failure to deny, dispute, or hedge meets with our idea of what a normally prudent and
The suggestion of error is sustained.
Reversed and remanded.
Dissenting Opinion
(dissenting).
I cannot assent in the reversal of this case. In my view appellant was accorded a fair trial and the verdict of guilty is supported by the evidence.
The case is reversed because the trial court erred in admitting the testimony, given by several witnesses, of a conversation which they overheard between appellant and his wife while both were confined in the county jail. In that conversation the wife charged appellant with committing the crime and he made no denial of it. It is held in the majority opinion that appellant “was not called upon to deny what his wife said under the circumstances,” and that the evidence had no probative value.
Admissions may be implied from the mere silence of a party. The following statement of the rule is contained in Jones on Evidence, vol. 2, par. 289':
“The rule is well settled that conversations between parties to a controversy,'in which one makes a statement of fact of which both have personal knowledge, and which naturally calls for a denial by the other if the statement is untrue, are competent against the silent party, as admissions, by acquiescence, of the truth of the statement. The weight of the admission varies with the circumstances of the case, and the strength of the probability that the statement, if untrue, would have evoked a denial, and is always for the jury, guided by a proper caution of the court as to the theory upon which such conversations are admitted.”
The law on this subject is further stated in Ruling Case Law, vol. 1, par. 15, as follows:
*609 “If a statement is made in the hearing of another, in regard to facts affecting his rights, and he makes no reply, it may be a tacit admission of the fact stated; depending upon whether he hears and understands the statement, and comprehends its bearing, whether the truth of the facts embraced in the statement is within his own knowledge, whether the circumstances are such as to afford him an opportunity to act and speak freely, and whether the statement is made under such circumstances and by such persons as naturally to call for a reply if he did not intend to admit it.”
I make this further quotation from the same paragraph of this very helpful digest and compendium of the law:
"“It may be stated as a general rule that statements made to or in the presence of a person, accusing him of commission of or complicity in a crime, are, when not denied, admissible, in evidence against him as warranting an inference of the truth of the statements.”
It has been decided that a statement calling for a denial, made in the presence of one accused of a crime by his wife, who is herself not a competent witness against him, is admissible in evidence against him. Dunham v. State, 8 Ga. App. 668, 70 S. E. 111.
In the case of Commonwealth v. Griffin, 110 Mass. 181, defendant was indicted for manslaughter, and the testimony of two officers who were concealed for the purpose of listening was offered to prove a conversation between the defendant and his wife, while in jail, concerning the homicide. They did not know that the witnesses or any persons were in hearing of them. The court held that this testimony was admissible.
It is clear that the testimony of the conversation between appellant and his wife, in which he failed to make denial when he was charged with the homicide, is admissible unless there is some circumstance or reason to relieve him of denying the charge. I do not see any
I note with much interest the statement in the majority opinion that the wise husband will refrain from contradicting his wife and endeavor to soothe and placate her ruffled temper, rather than to question her words, even though wide of the truth, and that few are so brave or so foolhardy as to chance the consequence of the contrary conduct. Such a husband is classed in the opinion as the “average man,” and the writer tells us that the majority of this court who are deciding this case are fashioned in the same mold; that they are unlike the judge who stands afar from the “firing line,” thinking he is in no immediate danger, and dares to say that a defendant, when charged with the unlawful taking of a human life by his wife, should deny the charge. I will not dispute what is so earnestly declared to be the proper course for a wise husband, in his temperate dealings with his irate spouse. Undoubtedly discreet conduct and soft words are advisable in such a situation. I bow with respectful deference to the experience and good judgment of the majority as to all these matters conjugal.
However, I do not think that this wise policy, which my brethren advise the good husband to follow, should be permitted to interfere with, and in truth interrupt completely, the operation of the rule touching the admissibility of the overheard conversation in this case.
“You know you killed that man and made me take it on myself, and if I was to do it over I would tell the people the truth about it, if you broke my neck.” Another witness stated her words as follows:
“Jim, you know you killed that man, there ain’t no need of you telling me to hush.”
It is also shown by the testimony that the couple were quarreling with each other. So appellant was not keeping silence in all matters during the conversation.
In addition to my view that the charges made by the wife called for a denial, I believe that it was for the jury, “in the light of all the circumstances, to say whether or not the silence or failure to deny amounts to an admission.” Jones, on Evidence, par. 289.
Appellant may not have failed to reply to his wife’s accusation because of his fear of her, as suggested by the reasoning in the majority opinion. He may not come up to the standard of “the average man” as a husband. It may be that he did not have the good judgment of such husband in deferring to his wife, recognizing superiority, or, if you please, her majority vote in all matters domestic. Perhaps their manner of life was not conducive of the finer feelings which move the average man to bow obediently to his spouse. This may readily be believed when we notice their living place and surroundings ; for it is in evidence that the room of moderate size, in which the murder was committed, contained three beds and was occupied by seven persons, one of whom was a man so drunk as to need the services of a physician.
Appellant may have thought that, as he and his wife were alone and no one in hearing, it was useless to deny what she already knew. Perhaps if he had known that
This couple, in the quiet of the night, alone as they doubtless believed, with the common knowledge of the crime, conversed with each other concerning the guilt, there was probative value in what they said, the degree of which the jury could determine.