Only the second headnote requires elaboration. In the fourth special ground of the motion error is assigned on the following charge: “Now I charge you, with reference to some other evidence in this case, upon the law of confessions. There is no evidence here that this defendant ever expressly confessed anything, but there is evidence here that certain statements were made in his presence by B.osa Lee Davis tending to connect him with the crime, and that when these statements were made he did. not deny these statements. It is contended in the case that amounted to a tacit admission, to an acquiescence in the truth of her statement, and therefore is in the nature of a confession. I charge you that all admissions should be scanned with care, and confessions of ■ *837guilt should be received with great caution. A confession alone, uncorroborated by other evidence, will not justify conviction. Now, whether or not standing silent whén one says something in his presence, whether that amounts to an admission, depends entirely upon whether or not the circumstances called for a denial. Under what circumstances were these statements made in the presence of this defendant? You look to that from the evidence. Was it a natural thing for this defendant to háve made a denial at the time and place that the evidence indicates that Eosa Lee Davis made a statement in his presence, tending to implicate him. If the circumstances were such as naturally called for a denial, why-the jury might consider- that in the nature of an admission, but all that must be scanned with great care and received with great caution. It would not be an admission unless the circumstances under which the statement was made in the defendant’s presence seemed imperatively to have called for a denial; or was it a natural thing for him, under the circumstances, to have merely remained silent without denying or admitting the truth of her statement? If it was the natural thing, the thing that might be expected under the circumstances, for him to have remained silent at the time and place where the statement was made, and he did not deny it, and it was unnatural for him to deny it, why you would not consider that at all in the nature of an admission by acquiescence.” The criticisms are numerous, but in substance they amount to a complaint that the court instructed the jury upon the law of confessions when there was no evidence of a confession of guilt by the accused ; that the charge amounted to an expression of opinion " that there was evidence that certain statements were Tirade in his presence by Eosa Lee Davis tending to connect him with the crime, and that when these statements were made he did not deny them.”
We think the charge was erroneous for both of these reasons. There was no evidence of a confession of guilt on the part of the accused; and it has been repeatedly ruled by this court that it is error to give in charge to the jury the law of confessions where there is no evidence which would authorize the jury to find that the accused had confessed. Owens v. State, 120 Ga. 296 (2) (48 S. E. 21); Thomas v. State, 143 Ga. 268, 269 (84 S. E. 587). Tt was also error for the court to state, as pointed out in the motion, that "there is no evidence here that this defendant ever expressly con*838fessed anything, but there is evidence here that certain statements were made in his presence by Eosa Lee Davis tending to connect him with the crime, and that when these statements were made he did not deny these statements.” Penal Code, § 1058. This was an expression of opinion, and we think it was especially harmful in this case, because the only evidence upon which the instructions could have been based was the following portion of the evidence of Deputy Sheriff Byrd: “ I was at the jail when Eosa Lee Davis saw the defendant the first time, and all four of the defendants were brought in here. Bob Eogers was with me, and we put her in the room adjoining the office and brought these four men in and stood them in front of her, and she pointed out the defendant as the man as doing the shooting, and she pointed out Jack Smiley as the man that hit the conductor over the head with the coca-cola bottle.” It will be observed from this evidence that Eosa Lee Davis was under arrest and in jail when the defendant and three others were brought into her presence, and “she pointed out the defendant as the man as doing the shooting, and she pointed out Jack Smiley as the man that hit the conductor over the head with the coca-cola bottle.” There is no other evidence in regard to this incident, either in the direct or cross.-examination of this or any other witness. In her testimony Eosa Lee Davis did testify .that she saw the accused and others incarcerated in jail,, and recognized the defendant. It does not appear whether the accused remained silent or whether he admitted the truth of the statement or denied it. There is simply nothing said in the evidence as to what he did. In these circumstances it cannot be assumed in the first place that he remained” silent and, upon that assumption, base the further assumption that his silence was an admission of guilt. For all of these reasons the erroneous instructions require the grant of a new trial. Thomas v. State, supra.
Judgment reversed.
All the Justices concur,