ON REHEARING.
RICE, C. J.'A petition for rehearing in this ease was granted, and the cause has been reargued at this term.
Appellant urged on rehearing that error was committed by the trial court in permitting witnesses for the state, Maybey and Nelson, sheriff and deputy sheriff, respectively, to testify that in a conversation they had with appellant, shortly after his arrest, he did not deny that the whisky *531which it was claimed was found in his possession belonged to him.
In the opinion of the writer the admission of this testimony was error. It is the better rule that the silence of a person accused of crime, when under arrest and in custody of the officers of the law, is not admissible in evidence against him. (Commonwealth v. Kenny, 12 Met. (Mass.) 235, 46 Am. Dec. 672; Commonwealth v. Brailey, 134 Mass. 527; People v. Pfanschmidt, 262 Ill. 411, Ann. Cas. 1915A, 1171, 104 N. E. 804; Towery v. State, 13 Okl. Cr. 216, 163 Pac. 331, L. R. A. 1917D, 491; Merriweather v. Commonwealth, 118 Ky. 870, 4 Ann. Cas. 1039, 82 S. W. 592; Gardner v. State (Tex.), 34 S. W. 945.) Even under the broader rule, followed in some jurisdictions, the testimony referred to was not admissible. The witnesses had not accused appellant of being the owner of the liquor said to have been in his possession, or made any other statement which naturally called for a denial upon his part. (16 C. J. 632.)
The error, however, is not reversible. Appellant on direct examination, in response to questions propounded by his counsel, testified that he told Mabey and Nelson that he did not have anything to do with the whisky, and throughout his testimony he denied that it belonged to him. The evidence objected to thus proved to be in anticipation of appellant’s defense. The admission of such testimony is largely in the discretion of the trial court. (16 C. J. 867.) If the evidence objected to had not been admitted by the court in the respondent’s case in chief, or had been stricken, it would have been properly admitted in rebuttal. The record shows beyond question that the admission of this evidence in chief did not affect appellant’s defense, or his manner of presenting it, in any respect.
The other matters urged by appellant do not justify reversal or require further discussion.
The judgment should be affirmed, and it is so ordered.
*532Budge, ¡J'., adheres to the views expressed in his concurring opinion on the original hearing.