dissenting: The statements made by Yictoria Portee to officer O. L. Finch, in the presence of her husband, were offered for the express purpose of contradicting Simon Portee. Defendant’s motion to limit this evidence to impeachment of Yictoria Portee, who, in her testimony, denied making said statements, was overruled. The competency of these statements, therefore, depends upon whether the occasion was such as to render the defendant’s silence at that time tantamount to an admission by acquiescence of the truthfulness of said statements. S. v. Jackson, 150 N. C., 831, 64 S. E., 376.
The rule, generally followed, is, that statements made to or in the presence and hearing of a person, accusing him of the commission of or complicity in a crime, are, when not denied, admissible in evidence against him as warranting an inference of the truth of such statements. 1 R. C. L., 479.
The fact that said statements were made by the wife of the defendant or one not competent to testify against him, while material, is not regarded as controlling in determining their competency. S. v. Record, 151 N. C., 695, 65 S. E., 1010; S. v. Graham, 194 N. C., 459, 140 S. E., 26; S. v. McKinney, 175 N. C., 784, 95 S. E., 162; S. v. Randall, 170 N. C., 757, 87 S. E., 227; S. v. Freeman, 197 N. C., 376, 148 S. E., 450; 1 R. C. L., 480. The occasion, as colored by some circumstance or significant conduct on the part of the accused, is what makes such statements, otherwise incompetent as hearsay, competent as evidence. S. v. Evans, 189 N. C., 233, 126 S. E., 607.
Indeed, it has been said that the acquiescence of a party, to have the effect of an admission, must exhibit some act of the mind, and amount to voluntary demeanor or conduct of the party, and whether it be acquiescence in the conduct or in the language of others, it must plainly appear that such conduct was fully known, or such language fully understood by the party, before any inference can be drawn from his passiveness or silence. The circumstances, too, must not only be such as afford him an opportunity to act or speak, but such also as would prop*148erly and naturally call for some action or reply, from men similarly situated. Taylor on Evidence, sec. 733.
"When a statement is made, either to a person or within his hearing, implicating him in the commission of a crime, to which he makes no reply, the natural inference is that the imputation is perhaps well founded, or he would have repelled it. S. v. Suggs, 89 N. C., 527. But the occasion must be such as to call for a reply. “It is not sufficient that the statement was made in the presence of the defendant against whom it is sought to be used, even though he remained silent; but it is further necessary that the circumstances should have been such as. to call for a denial on his part, and to afford him an opportunity to make it.” 16 C. J., 659.
Was the present occasion such as to call for a reply from Simon Portee? I think not. S. v. Ried, 178 N. C., 745. He had already, in effect, made a different statement to the officers. What more could he accomplish by denying again what his wife had said?
Silence alone, in the face or hearing of an accusation, is not what makes it evidence of probative value, but the occasion, colored by the conduct of the accused or some circumstance in connection with the charge, is what gives the statement evidentiary weight. S. v. Burton, 94 N. C., 947; S. v. Bowman, 80 N. C., 432. “To make the statements of others evidence against one on the ground of his implied admission of their truth by silent acquiescence, they must be made on an occasion when a reply from him might be properly expected. But where the occasion is such that a person is not called upon or expected to speak, no statements made in his presence can be used against him on the ground of his presumed assent from his silence.” Ashe, J., in Guy v. Manuel, 89 N. C., 82.
The character of evidence we are now considering is so liable to misinterpretation and abuse that the authorities uniformly consider it as evidence to be received with great caution and, except under well-recognized conditions, hold it to be inadmissible altogether. Hence, unless the party at the time was afforded a fair opportunity to speak, or the statements were made under circumstances and by such a person as naturally called for a reply, the evidence is not admissible at all. S. v. Jackson, supra.
In the instant case the defendant having, in effect, denied the statements once, evidently did not regard the occasion such as to call for their further contradiction. In this, I think he was correct. Riley v. State, 107 Miss., 600, 65 So., 882, L. R. A., 1915 A, 1041.
But it is said that as to whether the occasion was such as to call for a reply from the defendant was a matter for the jury to determine in passing upon the weight of the evidence. S. v. Martin, 182 N. C., 846, *149109 S. E., 74; S. v. Walton, 172 N. C., 931, 90 S. E., 518; S. v. Bowman, 80 N. C., 432; S. v. Perkins, 10 N. C., 376. The law is otherwise with respect to confessions. S. v. Andrew, 61 N. C., 205. “In this jurisdiction it is the province of the judge, and not that of the jury, to determine every question, whether of law or of fact, touching the admissibility of evidence.” S. v. Whitener, 191 N. C., 659, 132 S. E., 603; Munroe v. Stutts, 31 N. C., 49.
Actual confessions are not admissible against a defendant unless they are voluntarily made. S. v. Newsome, 195 N. C., p. 566. Hence, “mere shadows of confessions,” such as arise from silence in the face of accusations, ought not to be received in evidence unless they amount to clear admissions by acquiescence.
BeogdeN, J., concurs-in dissent.