delivered the opinion of the court:
Plaintiff in error, William Hanley, and Andrew Stable and Harry Anderson, were indicted for the robbery of Albert Novak with a gun. A separate trial was grаnted to Anderson, and Hanley and Stable were found guilty of robbery with a gun, in manner and- form as charged in the indictment. Hanley and Stable wеre found to be of the ages of twenty and nineteen years, respectively. Both were sentenced to the State refоrmatory at Pontiac, and Hanley brings the cause here for review.
Testimony of the complaining witness, Albert Novak, and of Leo Kupferschmidt, was to the effect that on the night of July 13, 1923, they were driving along the streets of Chicago in an automobile. On Cortland street they passed a car near the curb with a number of young men standing around it. One of them stepped out and held up his hand. Novak and Kupferschmidt drew near the curb and slowed down. Plaintiff in error jumped on the running-board of the car and pointed a gun at the witnesses and made them get out of the car, afterwards ordering them back into its rear seat. Two other young men got into the car with thеm. They took three dollars from Kupferschmidt and eight dollars from Novak and told them to get out of the car and they would later tеlephone them as to where the car was. Both Novak and Kupferschmidt identified plaintiff in error as being one of the robbеrs, and testified that he had a gun in his hand, which he held on them. They both testified that they later recognized him at the police station. Their identification was positive and unequivocal.
Anderson, who was jointly indicted with plaintiff in error but not then on trial, testified that he was оne of four men who held up Novak and Kupferschmidt. He told substantially the same story as to the hold-up. He testified that he, plaintiff in error, Stable and a young man named McMahon were in the hold-up. The last named was not indicted. Anderson also testified that he was present at a conversation between the police, Stable and plaintiff in error ; that witness there told the story of the hold-up; that Stable said they might as well tell everything as witness had “squawked,” but that plaintiff in error said to keep still,— that he wasn’t going to say anything. This conversation was also testified to by Jensen, a member of the police force. Anderson testified that Novak and Kupferschmidt were present when this conversation was had between Stable and the police, in the presence of рlaintiff in error. In this he is contradicted, however, by Jensen, Novak and Kupferschmidt.
The defendants took the stand and testified that they were not in that neighborhood at the time of the robbery. Stable testified that he. was not in the company of plaintiff in error on the night of the 13th and 14th, and the latter testified to a like effect, also that he did not have a gun and never carried one. On rebuttal the People called Joseph Oesterle, who testified that shortly after twelve o’clock on the morning of July 14 he saw plaintiff in error and Stable together, and that plaintiff in error had a gun similar to the- one introduced in evidence on the trial.
The only grоund upon which reversal is sought in this case is the introduction of incompetent testimony, it being urged that it was incompetent to admit the statement of Anderson made in the presence of plaintiff in error when the latter said he would say nothing, and that his-statement was not an implied admission or confession. It is also contended that Oesterle’s testimony was incompetent, as it tended to еstablish a separate and distinct crime. Concerning the latter objection, it is sufficient to say that both Stable and plaintiff in error having testified that they were not together on the night of July 13 and 14, and the latter having testified that he never carried a gun, the testimony оf Oesterle was competent both for the purpose of showing that the two defendants were together on the night in question аnd as contradicting plaintiff in error’s statement that he never carried a gun.
It is said that testimony concerning the statement of Anderson, made in the presence of police officers and plaintiff in error, is incompetent. The rule is that where statements are made in the presence of the accused under such circumstances that he is not in a position to deny them, or if his silence is of a character which does not justify the inference that he should have spoken, or if he is restrained in any way from speaking by fear, doubt of his rights, instruction by his attorney, or reasonable belief that his security would be best promoted by silenсe, his silence does not amount to an admission of the truth of the statements made and such statements are not admissible as against the accused. (Slattery v. People,
The judgment of the criminal court of Cook county is affirmed.
Judgment affirmed.
Mr. Justice DeYoung took no part in this decision, .