I concur in the judgment of affirmance. I also concur in the opinion of the chief justice, except that I fear that what is said in paragraph 4 of the opinion might be construed as including more than I think the law warrants on the subject there discussed. I adhere to my concurring opinion in People v. Dole,122 Cal. 497,1 to the point that when a person is arrested on a charge of crime, he is not called upon to make any response to any question asked him by the arresting officer, or to any statement made by such officer, and that his refusal to make any reply to anything the officer may say to him is "not a circumstance incriminating the person arrested, and constitutes no evidence against him." If, therefore, in the case at bar, the evidence objected to had only shown that appellant had not made any reply to a question or statement of the officer to the appellant, the allowance of such evidence would have been error. But the incriminating statement was made, not by the officer, but by the deceased; and I do not think that the failure of appellant to make any reply to the deceased is taken out of the category of legitimate evidence by the mere fact that the arresting officer was present. Of course, a jury might attach very little importance to the failure of an accused person to make response to a statement made by any one; but the evidence is admissible, and it is for the jury to determine its significance, considering all the surrounding conditions.
Rehearing denied.
1 68 Am. St. Rep. 50. *Page 542