I concur in reversing the judgment and the order denying a new trial upon the grounds stated in the opinion of the chief justice.
I do not concur, however, in the views expressed in that opinion respecting the alleged error of the court below in overruling defendant’s objections to certain questions asked him on cross-examination. I think that the ruling of the court below in that matter was erroneous, and that such ruling is an additional ground for reversing the judgment and order appealed from.
In the first place, I do not think that the questions asked the defendant were cross-examination, under section 1323 of the Penal Code; they were not as to matters “about which he was examined in chief.” I do not understand it to have been 'established by this court that a defendant in a criminal case, who has gone upon the stand as a witness for himself, can be cross-examined to the full extent to which the examination of ordinary witnesses may be carried. My views on that subject are expressed in my opinion in People v. Meyer, 75 Cal. 386. (See also *498recent case of People v. Arrighini, 122 Cal. 121, where this subject is thoroughly discussed.) But the matter sought to he proved by the questions was in itself inadmissible. If a case can be imagined where it would be competent to prove what a prisoner under arrest didn’t say to the officer who holds him in custody, and who is often his hostile prosecutor, the circumstances disclosed by the record here do not make such ease. The'silence of a person arrested in the presence of the arresting officer, or a refusal to answer a question of the officer, is not a circumstance incriminating the person arrested, and constitutes no evidence against him. Of course, there are some circumstances under which a man’s silence may be evidence against him—circumstances under which it would be natural for men similarly situated to speak; but it would be unwise and foolish, particularly in this state, where arresting officers are frequently prosecuting ’ officers, for a man arrested for a crime to say anything whatever to such officers. And it has been held frequently that the silence of a prisoner in the presence of the officer having his custody cannot be given in evidence. (Greenleaf on Evidence, par. 197, and cases there cited; Commonwealth v. McDermott, 123 Mass. 440; 25 Am. St. Rep. 120; Commonwealth v. Walker, 13 Allen, 570; Commonwealth v. Kenney, 12 Met. 235; 46 Am. Dec. 672.) I think that this rule is also substantially stated by this court in People v. Elster, 3 West Coast Rep. 35. The appellant was not called upon at all to explain in any way why he had not told a police officer what he then testified to, and it was not proper to put him in a position where some such explanation would be expected. The question here involved differs materially from a mere general question asked an ordinary witness as to whether or not he had ever stated to any person what he was testifying to until he came upon the stand. My opinion is, that the allowance of these questions over the exception of the appellant constitutes error that was prejudicial to the appellant.
Henshaw, J., and Temple, J., concurred.