I concur in the conclusions reached by the Chief Justice. The rule, as I understand it, in regard to expert testimony, is, to use the language of Mr. Justice McGowan in State v. Coleman (20 S. C., at page 452), that the opinion of the expert “should be given in the abstract, rather than in the concrete, upon the facts proved, and not the general merits of the case, though they may give an opinion upon a similar case hypothetically stated.” So that here, while it was competent for Dr. Pool to give an opinion as to what agency was capable of producing such marks as he found upon the person of the deceased, it was not competent for him to go on and express an opinion that such marks were in fact produced by a particular agency — the human hand. That was a question for the jury, and not the witness, to decide. There was testimony tending to show that the marks found on the body might have been produced by disease,- or by the use of a rope, or by the hand, and it was for the jury to determine from the testimony, whether they were in fact caused by one or the other agencies; and it seems to me that it was error to permit the witness to express his opinion on that point.
Then as to the admissibility of the declarations, as they are termed, made by the deceased when under examination before a trial justice, I think they were clearly inadmissible. As I understand it, sometime before the alleged homicide was committed the deceased was examined as a witness in a prosecution commenced by her against old Mrs. Senn, her mother-in law, for assault, and in the course of her testimony in that case she stated that her husband, David N. Senn, had made certain diabolical threats against her, and this statement the trial justice was permitted to testify to in this case, upon the ground that •the statement having been made in the presence of David N. Senn (for he was present at the trial before the trial justice), and not denied by him, amounted to an admission on his part that he had made such threats. It will be observed that the deceased did not, directly addressing herself to her husband, charge him with making these murderous threats, but her statement was made while on t.he stand as a witness in a case against another person; though it is *401somewhat difficult to understand what threats made by her husband against her had to do with .a prosecution against old Mrs. Senn for an assault upon the witness.
While it may be true, as a general proposition, that where a person is charged with an offence and remains silent under the accusation, his silence is regarded as an implied confession of the truth of the charge, because the presumption is that an innocent person would not remain silent under a false accusation made ■against him; yet this proposition is not universally true, and it depends largely upon the circumstances under which the accusation is made, as is shown by the case of State v. Edwards, 13 S. C., 30. In that case several persons were charged with burglary and larceny, and. one of them, Rodgers, after his arrest, made a full confession of his guilt, “and said in the presence and hearing of the other defendants that they were present aiding and participating in the larceny. To this statement of Rodgers there was no dissent'by any of the other defendants, one of them remarking to the prosecutor: ‘We know you have got us, and we want you to be as light as you can.’ The others heard this remark, but said nothing.” The Circuit Judge having charged the jury that if a person hears a criminal charge made against him and says nothing, it is an admission of the charge, and the court will accept it as his confession, this court, upon appeal, held such instruction erroneous. Willard, O. J., in delivering the opinion of the court, using this language: “To give the silence of parties such legal effect is equivalent to holding that every person accused of crime by any person, regardless of time, place, or circumstances, is bound to deny such accusation and affirm his innocence. It is clear that the law imposes no such obligation on a party accused.” As is said in 1 Greenl. Evid., sec. 197, after speaking of other qualifications of the rule respecting the effect of silence : “The circumstances, too, must be not only such as afforded him an opportunity to act or to speak, but such also as would properly and naturally call for some action or reply from men similarly situated.” And in a note to that section it is said : “To affect a party w'ith the statements of others, on the ground of his implied admission of their truth by silent acquiescence, it is not enough that they were made in his presence ; for, if they *402were given in evidence in a judicial proceeding, he is not at liberty to interpose when and how he pleases, though a party ; and, therefore, is not concluded,” citing several cases.
Now, in this case the charges made against David N. Senn were made under such circumstances as not only did not call for, but did not permit, any reply from him. He had no right to interpose a denial, or otherwise interfere with the examination of a witness in a case to which he was not a party, and his failure to do so should not be allowed to affect him in any way. True, it is said that David N. Senn was offered an opportunity to testify in the case and declined to avail himself of the offer, possibly for the reason that he knew nothing about the case, or possibly for the reason that he did not wish to testify in a controversy between his wife and his mother. But suppose he had gone upon the stand as a witness in that case, the rules of law would not have permitted him to contradict the charges made by his wife against him, as such charges were wholly immaterial to the issue then being tried. It seems to me, therefore, that there was error in permitting the trial justice to testify to declarations made by the deceased, in the course of her testimony in another case, tending to show that the prisoner entertained murderous feelings against her.
Again. I am not prepared to assent to the proposition that the testimony given by the two prisoners before the jury of inquest could be given in evidence in this case against them; and certainly not that it could be proved by parol, when it appeared that such testimony had been taken down in writing and was then in court. • It is essential to the admissibility of the admissions or confessions of a party charged with crime that they Should be free and voluntary. Now, when a person, though not at the time charged, or even suspected, of the crime, is summoned before a coroner’s inquest and compelled to testify (for the law does compel persons so summoned to testify), I do not see how such testimony can be regarded as such a free and voluntary statement as would justify receiving it in evidence, when the person so testifying is afterwards charged with the crime. It is true, that when examined as a witness he may decline to make any statement tending to criminate himself, but the moment he *403does so he at once excites suspicion of his guilt; or he may not know at the time what effect his testimony may afterwards have. It seems to me, therefore, that the only way to preserve in its integrity the well settled rule that a person cannot be required to furnish testimony against himself, is to hold that, if examined before a coroner’s jury or a committing magistrate, the testimony which he is then required to give cannot be used against him in a prosecution subsequently brought against him. As there is no decisive authority in this State upon this point, so far as I am informed, and as the authorities elsewhere are conflicting, we are at liberty to adopt such rule as we think most in conformity with settled principles, and as it seems to me that the rule above indicated is of that character, I think it should be adopted.
It seems to me, also, that the fact that persons other than members of the jury were permitted to mingle with the jurors while they were deliberating on their verdict, requires that this verdict should be set aside. While I subscribe fully to the doctrine that the court will not listen to affidavits tending to impeach the verdict of a jury by showdng what passed between the jurors while deliberating on their verdict, or the motives or reasons which may have induced some or all the jurors to reach the conclusion evidenced by the verdict as announced ; yet it seems to me that where it is made to appear that the jury, after retiring to their room, have been exposed to outside influences, the court should, without inquiring whether such influences have been exerted, set aside the verdict. The privacy of the jury room has always been regarded as sacred, and the law contemplates that all proper precautions should, as far as practicable, be taken to preserve the jury even from the chance of being operated upon by outside influences, and where it appears, as it does in this case, that the jury have been exposed to outside influences, I think it is sufficient ground to set aside the verdict.
The fact relied upon as an excuse or explanation of the presence of the constables with the jurors while they were deliberating on their verdict — that the jury had left their own room and had taken possession of the court room, was itself a violation of the well settled practice. It does not appear that any permission was obtained from the judge to leave their own room and úse the *404court room for their deliberations. No doubt, if application to that effect, based upon sufficient reasons, had been made to the judge for such permission, it would have been granted; but in granting it there can be no doubt that the judge would have required proper precautions to be used to preserve the jury from exposure to outside influences. The fact that the jury, without authority, left their own room and took possession of the court room, certainly did not justify or excuse the presence of the constables with the jury while they were engaged in deliberating on their verdict.
The majority of the court having reached the conclusion that there was error of law in the trial below, the judgment of this court is, that the judgment of the Circuit Court be reversed, and that the case be remanded to that court for a new trial.
Mr. Chiee Justice Simpson concurred in this opinion.