In my opinion everything that occurred at the city and county jail in the presence of the defendant upon the occasion of the visit of Murphy and Rietow was properly received in evidence as admissions of the defendant.
"Admissions are competent evidence in the trial of any case where they are pertinent to the issue and where they tend to incriminate the accused and connect him with the crime charged." 2 Wharton's Crim. Ev. (11th ed.) § 645, p. 1081.
An admission may be in the form of a direct statement of the accused (Id. § 645, p. 1081) or it may be implied from the failure of the accused, when a statement is made to him or in his presence, to deny, contradict or object to the same, where from the nature of the statement a denial, contradiction or objection by the accused might be ordinarily and reasonably expected. (Id. § 656 and cases cited under footnote 13, p. 1089.)
The only ground of admissibility of this evidence considered by my brothers is the latter and hence I shall direct my attention to that phase of the question first. *Page 188
As I understand the majority opinions they accept as controlling the rule of "admission by silence" as enunciated in 2 Wharton's Crim. Ev. (11th ed.) § 656, p. 1089, but in my opinion they have misconceived its meaning and scope and misconstrued the evidence to which it is applicable.
Both opinions proceed upon the theory that the incriminating statement must be directly and openly accusatory in character and made to the accused by one the refusal to answer whom would ordinarily, similarly as in civil cases, operate as an estoppel. The rule admits of no such connotations.
Throughout the opinion of the chief justice the terms "accusatory" and "incriminating" are used interchangeably as though synonymous. Moreover the term "incriminating" is applied as though it meant "accusatory." Obviously an accusatory statement is an incriminating one. But an incriminating statement need not necessarily be accusatory. Nor need the incriminating statement be more than an indirect reference, allusion or implication in respect to any matter or thing material to the proof of the offense charged. The real test is whether the statement is one ordinarily and reasonably calling for denial, contradiction or objection. And this is so not because the failure to deny, contradict or object to the statement is evidence of its truth but because it indicates a consciousness of guilt and permits an inference of guilt of the crime charged. Silence in the face of inculpatory or incriminating statements where, if innocent, denial, contradiction or objection would be ordinarily and reasonably expected is but a manifestation of a consciousness of guilt similarly as flight, lying, going armed, resisting arrest, traveling under an assumed name or secreting stolen goods. In the experience of mankind inculpatory or incriminating statements provoke denial, contradiction or objection by the innocent. *Page 189
Professor Wigmore says: "The commission of a crime leaves usually upon the consciousness a moral impression which is characteristic. The innocent man is without it; the guilty man usually has it. Its evidential value has never been doubted. The inference from consciousness of guilt to `guilty' is always available in evidence. It is a most powerful one, because the only other hypothesis conceivable is the rare one that the person's consciousness is caused by an insane delusion, and not by the actual doing of the act." 1 Wigmore on Evidence § 173, p. 224. "A criminal act leaves usually on the mind a deep trace, in the shape of a consciousness of guilt, and from this consciousness of guilt we may argue to the doing of the deed by the bearer of the trace. * * * As an axe leaves its mark in the speechless tree, so an evil deed leaves its mark in the evil doer's consciousness." Id. § 267, p. 336. (See "Some Observations on the Law of Evidence — Consciousness of Guilt," R.M. Hutchins, D. Slesinger, U. of Pa. L. Rev. 77:725-40.)
As might be expected the greater number of incriminating statements made to or in the presence of an accused are accusatory in form and hence the majority of cases that have found their way to the courts of last resort involve accusatory statements and contain misleading general dicta that unless the statements are accusatory they are inadmissible. An examination of the cases cited by Wharton in support of his rule found in note 13 on page 1089 discloses that the incriminating statements made to or in the presence of the accused in order to their admissibility need be nothing more than indirect references, allusions or implications: State v. Cruse, 112 Kan. 486, 212 P. 81, "to the prejudice of an accused"; Donnelly v. State,26 N.J.L. 601, 613, "injuriously affect his [defendant's] rights"; People v. Kessler, 333 Ill. 451, 164 N.E. 840, "that he [defendant] was concerned in its [the *Page 190 crime's] perpetration." Roscoe's Criminal Evidence (8th ed.) page 89, says: "Besides the proof of direct confessions, the conduct or demeanor of a prisoner on being charged with the crime, or upon allusions being made to it, is frequently given in evidence against him." Additional authorities are cited in the margin.1
Nor is it necessary that the incriminating statement refer to the ultimate fact. The reference may be to any matter or thing material to the proof of the offense charged: State v.Goodwin, supra, "relating to the matter at issue";Commonwealth v. O'Brien, 179 Mass. 533, 61 N.E. 213, "if found to concern a material matter." See also2.
The rule of acquiescence by silence finds its application most frequently in the accusations of victims of criminal offenses committed against them and of peace officers such as detectives, prosecuting officers and the like made to or in the presence of the accused. But the application of the rule is not confined to such instances. The incriminating statement may be made by a codefendant or a stranger to the offense or to its detection or prosecution: Jackson v. State, supra, conversation between witnesses and the defendant; *Page 191 Vaughn v. State, supra, the statement of one defendant incriminating another; Ford v. State, 34 Ark. 649, 654, at the magistrate's trial H [defendant] said to appellant and J [another defendant]: "Boys, I am out of this, and, if P [another defendant] don't turn state's evidence, we are all right";Conway v. State, supra, conversation in presence of the defendant in which the witness was seeking to obtain information that might enable the accused to escape; State v. Davis,supra; Commonwealth v. Galavan, 9 Allen (Mass.) 271, 273, statements by a wife in the presence of her husband;Commonwealth v. Sliney, supra, conversation between inmate and prospective customer on trial for keeping a house of prostitution; Smith v. State, 52 Tex. Cr. 344, 106 S.W. 1161, request by a fraternity brother of the accused to deny the charge if not guilty and his answer, "I want it investigated"; Taylor v. State, 135 Ga. 622, 70 S.E. 237, effort to suppress evidence; Wasserleben v. State, 184 Ala. 2, 63 So. 520, effort to conceal a crime; Morehead v. Commonwealth, 194 Ky. 592, 240 S.W. 93, forestalling an indictment.
Obviously every case depends upon its own individual facts. But the scope of the rule is indicated by the refusal by the majority of the authorities to be confined to any set rule and the adoption of the more general test of whether "from the nature of the inquiries, if innocent, reply would naturally be made." Greenleaf says: "Admissions may also be implied from theacquiescence of the party. But acquiescence, to have the effect of an admission, must exhibit some act of the mind, and amount to voluntary demeanor or conduct of the party. * * * The circumstances, too, must be * * * such also as would properly and naturally call for some action or reply, from men similarly situated." 1 Greenleaf on Evidence (14th ed.) § 197, p. 257. Professor Wigmore approaches the subject from the same standpoint as Greenleaf: "This sort of evidence is admitted because *Page 192 there is a certain degree of uniformity in its meaning, but the variations from uniformity are so frequent, and depend so much upon personal character and local circumstances that no fixed rules should be laid down." 1 Wigmore, supra, § 273, p. 348. The following cases reflect the majority rule: Vaughn v.State, supra: "Where a statement is of such character as would naturally call for a reply"; State v. Cruse, supra: Statements "to the prejudice of an accused made in his presence and which he tolerates without resentment, explanation or denial, are ordinarily admissible as some evidence of his consciousness of guilt"; State v. Belknap, supra: "That it naturally and reasonably called for some reply"; State v. Goodwin, supra: "Relating to the matter at issue, which would naturally call for reply, if the defendant did not desire to acquiesce in them." The United States Supreme Court, in the case of Bram v. UnitedStates, 168 U.S. 532, 559, summarizes the decisions of the state courts as follows: "In some of the States it has been held that where questions are propounded to a prisoner by one having a right to ask them, and he remains silent, where from the nature of the inquiries, if innocent, reply would naturally be made, the fact of such silence may be weighed by the jury."
A great many of the authorities say that whether or not the accused, from the nature of the statement, was called upon to deny, contradict or object to the statement is a question of fact for the jury inferring that the question of consciousness of guilt is solely a question for the jury. Other authorities say that their admission is within the discretion of the trial judge. I concede that there is the preliminary question for the court to decide in the first instance as a matter of law whether the evidence is admissible. But from an examination of the authorities cited in the note referred to in Wharton it would seem that if the alleged statement made to or in the presence of the accused *Page 193 and his action and conduct in connection therewith indicate the least consciousness of guilt the evidence is admissible. Wigmore summarizes the situation as follows: "The general principle, as applied to the conduct of one accused of crime, finds illustration in a great variety of instances. In those which have led to judicial rulings, there has seldom resulted an exclusion, because usually none but conduct having at least plausibly aguilty significance [italics supplied] is commonly offered." 1 Wigmore, supra, § 273, p. 348.
Hence it may be said in conclusion that the authorities support the rule that where any reference, allusion or implication, direct or indirect, in respect to any matter or thing material to the proof of an offense charged, is made by anyone to or in the presence of a person accused or suspected of the commission of such offense, where, from the nature of such reference, allusion or implication, if innocent, reply would naturally be made, the failure to deny, contradict, object to or explain such reference, allusion or implication is material, relevant and competent evidence of a consciousness of guilt.
The majority are agreed that the language of the witness Murphy to the accused was neither incriminating nor accusatory. The evidence of Murphy quoted in the margin is its own refutation.
As I construe the evidence, Murphy and Rietow advised the accused to interpose the defense of insanity and to immediately proceed upon a false and deceptive course of conduct calculated to give credence to that defense ("break insanity," "I told him to complain of a headache and call in his doctor and to break insanity"); in other words to malinger; that the statements that the accused was in a difficult and dangerous position ("very tough spot") and that the prosecution was in possession of sufficient evidence to convict ("that they had enough evidence against him — *Page 194 to hang him") were preliminary to and assigned by them as reasons for the advice which followed; and Murphy's statement that he thought the accused was crazy and that half the people on the street thought he was crazy was made by way of intimation of the evidence available and which in the event the accused interposed a defense of insanity, Murphy and Rietow, consistently with their offer to assist, could secure.
To advise a person accused of the crime of murder to interpose the defense of insanity and to immediately proceed upon a false and deceptive course of conduct calculated to give credence to such defense and as reasons for such advice to state that the accused is in a very difficult and dangerous position; that the government is in possession of evidence sufficient to convict and that the defense advised appears to be the only successful means of escape, while not "accusatory" is certainly "incriminating." Nor are the reasons assigned for the advice "mere expressions of opinions" which to the accused would appear "wholly conjectural requiring no response."
Murphy and Rietow were friends of the accused. They had mutually previously discussed the evidence against him, and they appeared fully conversant with its details as instanced by the reference by Murphy to "scientific evidence" and the particularization by Rietow of the discovery of powder residue on the right hand of the accused within a few hours of the tragedy, evidence of which later upon the trial was given by the witness Dr. McVeagh, the expert in charge of the bureau of criminal research. They mutually concluded that their friend was in a "tough spot" a "very tough spot" and feeling in duty bound to help him extricate himself from the difficult and dangerous position in which he was, called on the accused for that purpose and unfolded to him the scheme which they had devised for his escape from what they thought was certain conviction. *Page 195 Viewed from the ordinary experience of mankind what reaction might one ordinarily and reasonably expect from an accused under those circumstances when thus approached? Silence? I think not. Silence to the suggestions of strangers or intermeddlers might be explained. But to friends it is inexplicable. To friends the accused, if innocent, would have, in my opinion, expressed doubt of the existence of such evidence; proclaimed its falsity if it did exist; protested innocence and spurned the advice of a defense that in effect admitted the commission of the criminal act but denied legal responsibility therefor by reason of insanity.
To say that "had the defendant concurred in all that Murphy said, such concurrence would not have been an admission of guilt nor inconsistent with his claim of innocence" is beside the point. If the accused, instead of excluding, had admitted his friends into his confidence an entirely different conversation would have taken place accordingly as the defendant was innocent or guilty. If innocent he would have replied as in my opinion an innocent man ordinarily and reasonably might be expected to reply. But he didn't. And we are therefore alone concerned with the silence of the accused and the application of the rule of "admission by silence."
Reliance is placed upon the reply of the accused to Rietow's reference to the incriminating presence of powder residue. The interruption by the accused of Rietow's statement and the repetition at its conclusion, "That is all right, I will explain that when the time comes," in my opinion is tantamount to silence. Rietow's statement called for an explanation. The presence of powder residue on the right hand of the accused was a fact material to the proof of the crime charged. Its importance and incriminating effect had apparently impressed both Murphy and Rietow and was referred to by both as one of the pieces of evidence in *Page 196 the possession of the prosecution calculated to convict. And yet when confronted with it the defendant hides behind an evasive, negative statement that means nothing.
But the bon mot of the exculpatory explanation of the conduct of the accused is the construction placed upon his parting reply: "O.K. I will think it over." In the conversation just concluded the accused had been told by his friends that the prosecution had in its possession sufficient evidence to convict. To this statement he was silent. One, particularized and referred to a particular piece of damaging evidence. The accused evades. The suggestion is made of the interposition of the defense of insanity. This suggestion is met by silence. The friends conclude that their visit has been in vain; that any further efforts by them on behalf of the accused are useless and under the circumstances, in parting say: "All right, Bill, I don't think we will be seeing you again. If you want to get any word to us send it to us and we will come down to see you," to which the defendant replied as already quoted. This reply is construed as a "natural response to Murphy's offer to revisit." "It" as contained in the reply of the defendant in my opinion referred to the suggestion of the defense of insanity in the event of the adoption of which by the accused, Murphy's and Rietow's return would become necessary in view of their offer of assistance and the indefiniteness of their first reference to the available evidence of insanity. But assuming that the word "it" referred to an offer to "revisit" it amounts to the same thing. The offer to revisit was conditional upon the accused's wanting to see Murphy and Rietow again and the accused would want to see them again only if he adopted their advice and desired to avail himself of their assistance in securing the evidence referred to. However, reasonable men may differ as to the import of the language employed, and I accord to the majority the same reasonable consideration of this *Page 197 evidence as I assert for myself, we have a situation peculiarly within the province of the jury to decide. The majority believe that this language is capable of one construction. I believe it is capable of another. Certainly this is a case, if there ever was one, where the submission of the construction of the language properly went to the jury.
There was ample proof of the corpus delicti and the conversation objected to was properly admitted in evidence under the rule of "admission by silence."
But the entire conversation was properly admitted in evidence upon another ground. As I construe the parting reply of the defendant to Murphy and Rietow, "O.K. I will think it over," it was a direct admission against interest and was admissible as substantive evidence of the crime charged. This portion of the conversation being admissible in evidence the entire conversation was admissible to explain its character and import. The whole of a conversation containing an admission should be received in evidence. (Bennett v. State, 96 Fla. 237, 118 So. 18.)
Any statement made by a defendant though not admitting the commission of the crime charged as against his interest is competent against him if it throws any light on the issue being tried and elucidates the subject matter of the trial. (2 Wharton's Crim. Ev. § 647, p. 1083.) Similarly as in the case of "admission by silence" "the admission may not of itself be definitely connected with the * * * occurrence upon which the charge of crime is based. The general rule applicable in such a case, unless the admission is so remote and vague as to be of no probative value, is that the statement is competent; it is for the jury to say whether the statement was or was not an admission referring to the crime charged." Id. § 647, p. 1084. "An admission which tends to prove an element of the crime charged and the connection of the defendant with such crime is competent evidence against the accused." Id. § 649, p. 1085. *Page 198
Hence in my opinion all that occurred at the visit at the county jail was properly admitted in evidence as admissions, both under the rule of "admission by silence" and the rule of "admissions against interest."
One of the reasons assigned by the chief justice in his opinion for the inadmissibility of this evidence was the fact that the defendant was under indictment for the offense to which the conversation of the defendant and Murphy referred and in default of bond was confined in jail, awaiting trial. This ground of alleged inadmissibility was not advanced by the defendant upon the trial either by his objections to the questions propounded which are the subject of assignment No. 21, nor by his motion to strike which is the subject of assignment No. 22. Nor did the defendant raise the point in his brief. This court is not at liberty to consider errors not assigned. The provision of section 3563, R.L. 1935, requiring the court in cases of this kind to "review the evidence to determine if the interests of justice require a new trial, whether the insufficiency of the evidence is assigned as error or not" refers and is confined solely to the question of the sufficiency of the evidence to sustain the verdict. (17 C.J., T. Crim. L., § 3593, p. 262, and cases cited under note 75 [a] especially. People v. Taylor, 138 N.Y. 398,34 N.E. 275, 278; People v. Kerrigan, 147 N.Y. 210,41 N.E. 494, 495; People v. Rodawald, 177 N.Y. 408, 70 N.E. 1;People v. Becker, 215 N.Y. 126, 109 N.E. 127.) Moreover, if, as the chief justice holds, the statements of Murphy and Rietow were not accusatory and hence inadmissible whether the defendant was under legal restraint or not becomes immaterial. And the reference to and criticism of the Buick case is a mere gratuity. Moreover the legal restraint of the defendant was immaterial under the facts. At the time of the conversation between the witness Murphy and the defendant the latter was not *Page 199 in the custody of an officer. No one in authority or responsible for his restraint was present and he was discussing his case with Murphy and Rietow in what he obviously supposed to be absolute privacy.
The majority are further agreed that despite its subsequent exclusion under proper instructions by the court, the newspaper published in Tennessee bearing the headline "Murder case still a mystery," the conclusion of Dr. Larsen that in his opinion the deceased was not of a suicidal disposition and the evidence of the witness Slattery that the deceased once expressed to the witness a fear of firearms, must have made such a strong and lasting impression upon the minds of the jurors that it must have been in their minds and despite the instructions of the court to disregard it, considered by them when deliberating upon their verdict.
The trial consumed 17 days, 57 witnesses were examined, the charge of the court includes 37 instructions. The record discloses meticulous observance of the rights of the accused. The care exercised by the learned trial judge is apparent when of the 42 assignments of error alleged those not considered by the majority, in their opinion, were deemed by them to be without merit. The law recognizes the fallibility of trial judges however learned and able and the liability of mistake occurring in the stress of trial and realized by the presiding judge only upon mature reflection. And to avoid the entry of a mistrial and resuming the trial anew accords to the trial judge the right of correcting the mistake and in the case of the admission of improper evidence of striking it out and instructing the jury to disregard the same. "It would be a serious misfortune if, when reflection perceives a mistake, it could not be corrected by `striking out,' with proper instructions to the jury. This the law permits." Looker v. United States, 240 *Page 200 Fed. 932, 935. (See also Pennsylvania Co. v. Roy,102 U.S. 451.) "The trial of a case is not to be suspended, the jury discharged, a new one summoned, and the evidence retaken, when an error in the admission of testimony can be corrected by its withdrawal with proper instructions from the court to disregard it." Hopt v. Utah, 120 U.S. 430, 438.
The majority assume that all this evidence was inadmissible. The newspaper article was never read in evidence and hence was never before the jury. Whether admissible or inadmissible is therefore immaterial. I am not satisfied that the evidence of either of the witnesses Larsen or Slattery was inadmissible but it certainly was not prejudicial, it being, as I shall hereafter point out, merely cumulative. But assuming that the evidence was improperly admitted its character and weight was such, and the other evidence of which it was corroborative so overwhelming, that it could not have in itself so affected the jury that one may say as a matter of law that it was impossible for the jury to heed the admonition of the court to disregard it. "It is only when evidence unlawfully admitted is of such apparent weight, and so prejudicial in effect, that the judicial warning against it seems light and unavailing by comparison, that the error remains uncured." Looker v. United States, supra. (See Throckmorton v. Holt, 180 U.S. 552; Armour Co. v. Kollmeyer, 161 Fed. 78.) "It is true, in some instances, there may be such strong impressions made upon the minds of the jury by illegal and improper testimony, that its subsequent withdrawal will not remove the effect caused by its admission; and in that case the original objection may avail on appeal or writ of error. But such instances are exceptional." Hopt v. Utah, supra, 438. The article in the newspaper bearing the headline quoted was, as heretofore stated, never read in the presence of the jury. Under the circumstances the heading alone could have had no greater effect upon the jury than any similar headline *Page 201 appearing in any of the local papers which the jury might have seen during the course of the trial. The prosecution promised to connect the newspaper up and upon its failure to do so admitted such failure and agreed that it be stricken and the jury instructed to disregard it. The evidence of Dr. Larsen though conclusionary in form was preceded by evidence of the same witness and other witnesses to the effect that the deceased was of a uniformly happy and cheerful disposition, intensely interested in her work as a nurse and looking forward to future professional and financial improvement. Hence this evidence, although in the form of an opinion, was merely corroborative of other evidence to the same effect. The evidence of the deceased's fear of firearms was no doubt offered by the prosecution to rebut the defense that the fatal wound was self-inflicted. But the evidence in support of the corpus delicti was so clear and convincing that this morsel of evidence could not have conceivably played any part in the jury's deliberation.
In my opinion the record is free from error and the interests of justice do not require a new trial.
1 Jackson v. State, 213 Ala. 143, 104 So. 220, 221;State v. Belknap, 39 W. Va. 427, 19 S.E. 507; State v.Goodwin, 119 Wn. 135, 204 P. 769, 770; Vaughn v. State,22 Ala. App. 604, 139 So. 833; McUin v. United States, 17 App. D.C. 323, 331; State v. Walton, 172 N.C. 931,90 S.E. 518; Rawls v. State, 160 Ga. 605, 128 S.E. 747; Conway v.State, 118 Ind. 482, 21 N.E. 285; State v. Wilson,205 N.C. 376, 171 S.E. 338, 339.
2 Smith v. State, 158 Ark. 487, 250 S.W. 527, 528;State v. Poynter, 34 Idaho 504, 205 P. 561; People v.Hicketts, 324 Ill. 170, 155 N.E. 39; State v. Davis,133 Kan. 571, 300 P. 1114; Commonwealth v. Sliney,126 Mass. 49; State v. Plym, 43 Minn. 385, 45 N.W. 848, State v.Quirk, 101 Minn. 334, 112 N.W. 409; State v. Samis, 296 Mo. 471, 246 S.W. 956, 959; State v. Steinkraus, 244 Mo. 152, 148 S.W. 877, 879; State v. Morris, 94 N.J.L. 19, 108 A. 765;State v. Rosa, 72 N.J.L. 462, 62 A. 695, 697; State v.Willoughby, 180 N.C. 676, 103 S.E. 903, 904; State v.Riley, 188 N.C. 72, 123 S.E. 303, 304; State v. Portee,200 N.C. 142, 156 S.E. 783, 784; State v. Robinson, 97 W. Va. 691,127 S.E. 46, 47; State v. Walton, supra; State v.Guffey, 39 S.D. 84, 163 N.W. 679, 680; Hardy v. State,150 Wis. 176, 136 N.W. 638; McCormick v. State, 181 Wis. 261, 194 N.W. 347, 350. *Page 202