In addition to concurring in the result sought by Judge Millard in his dissenting opinion, I desire to submit an additional dissent to the majority opinion. *Page 478
One under arrest or in custody, charged with crime, is under no duty to make statements concerning such crime; and statements tending to implicate him, made in his presence, although not denied by him, are not admissible against him. This rule has been adhered to by the Federal and state courts in this country. Below I list many of them. State v. McKenzie, 184 Wash. 32,49 P.2d 1115; Commonwealth v. McDermott, 123 Mass. 440, 25 Am.Rep. 120; Diblee v. State, 202 Ind. 571, 177 N.E. 261; Millerv. MacFarlane, 97 Conn. 299, 116 A. 335; State v. Roberts,149 La. 657, 89 So. 888; Phillips v. Cason, 153 La. 56,95 So. 400; Commonwealth v. Gangi, 243 Mass. 341, 137 N.E. 643;Commonwealth v. Anderson, 245 Mass. 177, 139 N.E. 436;Commonwealth v. Hamel, 264 Mass. 564, 163 N.E. 168; State v.Dengel, 248 S.W. (Mo.) 603; State v. Hogan, 252 S.W. (Mo.) 387; State v. Higgins, 321 Mo. 570, 12 S.W.2d 61; State v.Kissinger, 343 Mo. 781, 123 S.W.2d 81; Ellis v. State,8 Okla. Crim. 522, 128 P. 1095; Cumpton v. Muskogee,23 Okla. Crim. 412, 225 P. 562; Mackey v. State, 30 Okla. Crim. 31,234 P. 782; Williams v. State, 102 Tex.Crim. App. 251,277 S.W. 389; Weatherred v. State, 129 Tex.Crim. App. 514,89 S.W.2d 212; People v. Smith, 172 N.Y. 210, 64 N.E. 814; Peoplev. Marendi, 213 N.Y. 600, 107 N.E. 1058.
In each of the cited cases, the court granted a new trial to the defendant because of the introduction of inadmissible testimony.
William Chappell, a police officer of the city of Raymond, testified:
"A. Well, I and Mr. Boock was in the police wagon and Sonny Tripplett and Bob Farrell, both, took Mr. Redwine down to the car and said he cut a man with a knife. . . . Q. Was the defendant present when the statement was made? A. Yes. Q. He heard it? A. Yes. Q. Did he deny it? A. Not that I know of. . . . Q. But he [appellant] was present when the first statements were made? A. He was. Q. You put him under arrest of course, didn't you? A. Yes."
Robert Farrell testified:
"Q. Did anyone take Redwine to the policeman that *Page 479 night? A. Yes, I did. Q. You did yourself. That was after the stabbing or after the bleeding you saw? A. Yes. The same night. Q. In taking him to the policeman what did he say, if anything, to you? A. Did not say a thing. Q. Was anyone with you when you took him to the police? A. No. Q. What did you say to him? A. I just told him I thought he would be better off down there. Q. And you led him along, did you? A. Half a block. Q. I say you took him a half block to the policeman? A. Yes."
The statements made to officer Chappell by Tripplett or Farrell were not made under oath and were not impelled by any circumstances of res gestae. The statements repeated by the officer were hearsay, not subject to cross-examination and extremely prejudicial to the interest of appellant.
From the evidence, it is clear that appellant was under arrest at the time the statement was made by either Tripplett or Farrell. The evidence was clearly inadmissible. State v.McKenzie, supra, and other cases cited. And no amount of guessing about the effect upon the minds of the jurors can cure the defect. Under the rule of guessing as to the probable effect any evidence may have upon the minds of the jurors, we may, by judicial opinion, eliminate the provisions of the constitution and all laws passed by the legislature. I ask, how can this court, from the typewritten pages of the statement of facts, explore the minds of the jurors? It may be that this statement repeated by the police officer left a profound impression upon the minds of some or all of the jurors and overbalanced the scales of conclusion in favor of the state.
During the thirty years I spent in the practice of law and as a trial judge, I took part in the trial of hundreds of cases tried to juries. In none of them was I able to ascertain what evidence compelled a verdict. I submit that no other member of this court or of the bar of this state can read the minds of the jurors.
Article I, § 9, of our state constitution provides:
"No person shall be compelled in any criminal case to give evidence against himself, or be twice put in jeopardy for the same offense." *Page 480
The majority opinion, by holding that an accused person must speak or admit guilt when accused, violates his constitutional right of being called to the stand and questioned. The approval by this court of the majority opinion means that in many instances hereafter a defendant may be tried with but one witness appearing against him, although there might rightly be a large number of witnesses of importance necessary to make out the case of the state, and the only witness so appearing might know absolutely nothing as to any material facts in the case. Incompetent testimony such as hearsay, opinion, and rumors might get to the ears of the jurors. A large crowd of interested people could make various accusations against the prisoner. The prisoner, exercising his right to refuse to discuss his case, might say nothing in reply. The result would be, as in this case, that the defendant would be deprived of his right of cross-examination; the jury would not have the privilege of seeing the witness so that it might pass upon his credibility; and the trial in our courts would be far from fair and impartial. From this time forward, the customary warning should be changed and the accused should be told when he is questioned: "If you say anything it will be used against you; if you do not say anything, that will be used against you, too." See Commonwealth v.Kenney, 12 Met. (53 Mass.) 235, 46 Am. Dec. 672.
The judgment should be reversed and the defendant granted a new trial.
BLAKE, J., concurs with SIMPSON, J.