The defendant, with, two others, was indicted for the murder of one George Eberhardt on the 24th day of January, 1899, and was convicted of murder in the second degree. It was charged by the prosecution that these persons jointly indicted for murder attempted to commit a burglary, but were discovered, and that while the defendant was endeavoring to escape he committed the murder for which he was convicted. The occurrence took place between three and four o’clock in the morning, when it was quite dark, and the only serious question of fact presented was as to the identification of the defendant as the man who fired the shot that killed the deceased. The principal evidence as to the identity of the defendant was the testimony of two women, with one of whom he was living at the time of declarations made- by the defendant. The defendant denies the truth of this testimony, and denies that he had anything to do with the burglary or that he killed the deceased. We should have no difficulty in affirming this, judgment were it not for an exception to the admission of a written statement purporting to have been made by Bauman, who was indicted with the defendant;
The crime was committed on the morning of the 24th of January, 1899,, the defendant and Bauman were arrested on the morning of the twenty-sixth' of January, and .on the same day Bauman made a statement to Police Captain Diamond, which was reduced to writing. Bauman and the defendant were then taken into the cap*11tain’s room, the statement was read over to Bauman in the presence of the defendant and was signed by Bauman. The captain, on his examination as a witness, testified that after this statement was signed by Bauman the captain asked the defendant if what Bauman said was true, but Young made no statement. The People offered the statement in evidence, which was objected to by the defendant, but which objection was overruled, to which an exception was taken. The statement was then read to the jury. It implicated the defendant as one of those who attempted the burglary. After this statement was read to the jury, the captain testified that the statement was read to Young by himself, but that Young refused to say anything. Upon cross-examination he testified that the defendant Young did not say anything, and that he told him that he did not expect him to say anything ; that anything he might say might be used against him, and that he did not find any fault with him for not answering; that Young said he had nothing to say; that the witness read the statement to him so that he would know what the other witnesses had said-in connection with the crime that had been committed.
“ Q. So that the only reason you assigned was that you wanted him to know what evidence the police authorities had ? A. Yes.”
It is quite clear that this statement of Bauman was hearsay and incompetent unless it was made competent by the occurrence to which Captain Diamond testified and which has been referred to. A statement of a third party, which in its nature is hearsay and incompetent, can only be made competent when it is. read to the defendant under such circumstances that he is called upon to deny it so that his failure to deny it can be deemed an acquiescence in its truth. The mere fact that such a statement is read in the hearing of a third party is not sufficient to make it competent evidence against him. The situation must be such as clearly requires from him some reply, so that his silence may be considered as an admission of the truth of the charge. The question as to the admissibility of statements of this kind has been lately considered by the Court of Appeals in the case of People v. Kennedy (164 N. Y. 449) where Judge Haight, in delivering the opinion of the court, says: “ There are circumstances under which the declarations of persons made in the presence of the accused are competent, but *12they are regarded as dangerous and should always be received with caution and should not be admitted unless the evidence clearly brings them within the rule. Declarations or statements made in ■the presence of a party áre not received as evidence in themselves, but for the purpose of ascertaining the reply the party to be affected makes to them. They are only competent when the person affected hears and fully comprehends the effect of the words spoken and when he is at full liberty to make answer thereto, and then only under such circumstances as would justify the inference of assent or acquiescence as to the truth of the statement by his remaining silent.”
Judged by this rule it would seem that this, statement was inconn petent. The paper was read to the defendant, but he was cautioned that he was not required to speak as anything he said might be used against him, and was told that the object of reading the statement to him was to inform him of the nature of the evidence that the police had against him. There was certainly nothing under these circumstances which .called upon the defendant to reply or from which his failure to reply could be deemed an assent to the truth of the statement. It might well be that the defendant being thus charged with murder, under arrest, cautioned by the captain not to speak, would consider his proper course to be to follow the captain’s caution and say nothing. His silence under these circumstances cannot be deemed an assent to the truth of the statement made.
While we think the evidence as to the defendant’s identity was quite sufficient to justify the finding of the jury without Bauman’s statement, yet as the identification of the defendant was the principal question at issue, and as .this statement bore directly on that point and, if true, was conclusive against the defendant, its admission was an error of such a character as to require us to reverse the judgment.
It follows that the judgment appealed from must be reversed and a new trial ordered.
Van Brunt, P. J., and McLaughlin, J.,, concurred; Hatch and O’Brien, JJ., dissented.