The defendant grounds bis motion for dismissal of the prosecution on the insufficiency of the evidence to show any felonious origin of the fire, or to identify the defendant as the culprit, citing S. v. Church,
The general rule is, that statements made to or in the presence and hearing of a person, accusing him of the commission of or complicity in a crime, are, when not denied, admissible in evidence against him as warranting an inference of the truth of such statements. 1 R. C. L., 479.
It is the occasion, colored by some circumstance or significant conduct on the part of the accused, which renders such statements, otherwise incompetent as hearsay, admissible in evidence. S. v .Evans,
Indeed, it has been said that the acquiescence of a party, to have the effect of an admission, must exhibit some act of the mind, and amount to voluntary demeanor or conduct of the party, and whether it be acquiescence in the conduct or in the language of others, it must plainly appear that such conduct was fully known, or such language fully understood by the party, before any inference can be drawn from his passiveness or silence. The circumstances, too, must not only be such as afford him an opportunity to act or speak, but such also as would properly and naturally call for some action or reply, from men similarly situated. Taylor on Evidence, sec. 733.
When a statement is made, either to a person or within his hearing, implicating him in the commission of a crime, to which he makes no reply, the natural inference is that the imputation is perhaps well founded, or he would have repelled it. S. v. Suggs,
Silence alone, in the face or hearing of an accusation, is not what makes it evidence of probative value, but the occasion, colored by the conduct of the accused or some circumstance in connection with the charge, is what gives the statement evidentiary weight. S. v. Burton,
Due to the manifold temperaments of people and their varying conceptions of the fitness of things, the character of evidence we are now considering is so liable to misinterpretation and abuse that the authorities uniformly consider it as evidence to be received with great caution and, except under well recognized conditions, hold it to be inadmissible altogether. Hence, unless the party at the time was afforded a fair opportunity to speak, or the statements were made under circumstances and by such a person as naturally called for a reply, the evidence is not admissible at all. S. v. Jackson,
Speaking to the subject in Vail v. Strong,
“It is sometimes said that, if a fact, which makes against the party, is stated in his presence, and is not contradicted by him, his silence raises a presumption of its truth. To this position we cannot accede. The mere silence of the party creates no evidence, one way or the other. There are, indeed cases, where the silence of the party creates a presumption or inference against him; but this presumption derives all its*380 force from tbe circumstances, under wbicb tbe statement is made, wbicb may call for a denial. If tbe party is under a moral or honorary obligation to disclose, or if bis reputation or interest is jeoparded by tbe statement, be bas a strong inducement to deny it, if be can do so with truth. His silence, under such circumstances, affords an inference against him, wbicb is more or less strong, in proportion to tbe inducement to make tbe denial. But even here, tbe evidence, thus created, rests altogether upon tbe attendant circumstances. If, for instance, tbe party be engaged in defending bis reputation or bis rights, an assertion, bearing upon tbe subject under discussion, and unfavorable to him, calls for a denial, and if there be not a denial, a presumption of its truth arises. But we know of no obligation upon tbe party to answer every idle or impertinent inquiry. He bas tbe right to be silent, unless there be good occasion for speaking. We cannot admit that be is bound to disclose bis private affairs, at tbe suggestion of idle curiosity, whenever such curiosity is indulged, at tbe hazard of being concluded by every suggestion, wbicb may be suffered to pass unanswered. Tbe true rule we understand to be this; — evidence of this character may be permitted to gO' to tbe jury, whenever tbe occasion, upon wbicb tbe declaration is made in tbe presence of tbe party, and tbe attendant circumstances, eall for serious admission or denial on bis part; but tbe strength of tbe evidence depends altogether upon tbe force of tbe circumstances and tbe motives, wbicb must impel him to an explicit denial, if tbe statement be untrue. But if no good reason exist to call for disclosure, and tbe party decline to enter into useless discussion, or answer idle curiosity, no legitimate inference to bis prejudice can be drawn from bis silence.”
Nor is it essential, though a circumstance to be considered perhaps, that tbe statements of complicity or accusation should be made by one competent to testify against tbe defendant. S. v. Record,
If it be conceded as more probable, from tbe foregoing epitome of tbe decisions on tbe subject, that tbe remark of tbe little child, “You burned our cow,” made on Monday after tbe fire when tbe defendant stopped at tbe borne of W. A. Bowman and sought to engage him in a conversation, called for no reply on tbe part of tbe defendant, its admission would seem to be without material significance on tbe facts of tbe present record. Tbe occasion is what gave it point, if it bad any. Tbe jury would not have attached any importance to tbe child’s statement, nor tbe defendant’s failure to notice it, but for tbe fact that be went to tbe borne of tbe prosecuting witness and sought to engage him in conversa
Tbe weight of tbe circumstance, if any it bad, lies in tbe conduct of tbe defendant, and not per se in tbe remark of tbe little child. At any rate, this evidence was only cumulative, tbe same implication having been made by tbe defendant’s brother on tbe day previous under circumstances which clearly called for a reply but which elicited no answer, and we are not disposed to regard its admission as harmful, even if its exclusion might have been more appropriate. Then, too, tbe defendant’s silence on this occasion was readily susceptible to explanation, which be elected not to make, evidently regarding tbe matter of small moment. 2 Wigmore on Evidence (2d ed.), 555.
Speaking generally to a somewhat similar situation in S. v. Bowman,
“Tbe prisoner excepted to tbe admission of tbe declarations of Eliza Jane Bowman, tbe daughter of tbe prisoner, in reference to tbe ‘last words’ of her mother, tbe deceased. They were clearly admissible for tbe purpose for which they were proved, and tbe remarks of bis Honor in commenting upon this testimony before tbe jury were perfectly legitimate. They were told it was for them to determine whether tbe declaration was made in tbe bearing of tbe prisoner, whether be beard and understood tbe statement, and if so, what was bis conduct on tbe occasion; did be immediately take up tbe child and bear her away in bis arms and keep her constantly in bis immediate presence while tbe company remained; and if they believed bis testimony, it was for them alone to say what value was to be attached to these circumstances as tending to prove tbe prisoner’s guilt. S. v. Perkins,
This view of the law has been followed in a number of later cases. S. v. Martin,
We find no error in tbe court’s refusal to set aside tbe verdict for alleged misconduct of one or more of tbe jurors. Tbe verdict and judgment will be upheld.
No error.