dissenting:
I think that the restrictive rules of evidence sometimes defeat a fair inquiry into relevant facts. For this reason I am unwilling to extend any of these rules, and this consideration constrains me to dissent from the conclusions of the majority in this case.
The cases in which this question has arisen have generally' been eases where the unanswered letter or document states damaging facts which, unless repelled by him, indicate the guilt of the accused, and hence his failure to reply to it is urged as showing an admission of the truth of the facts so stated. The letter here involved, however, contains no allegation of fact which tends to show the crime charged. There is no charge of seduction under promise of marriage, nor allegation with reference thereto. It is, fairly considered, a request or demand that he reply to her importunities, coupled with a threat to tell her father of their intimacy and its consequences unless he complied therewith. It is equally consistent with a meretricious intimacy, without inducement, by consent or by her own fault, as with the crime of seduction under promise of marriage.
There have been many cases involving such written *803communications, but no definitive statement of the rules governing every case can be made, and the admission or rejection of such testimony depends upon the circumstances of each ease.
“The reception of such evidence rests in the discretion of the trial court and his ruling will not be disturbed unless an abuse of his discretion is shown.” 2 Whart. Crim. Ev. (10th ed.), section 527-d.
The distinguishing facts of each case should be considered. 2 Wigmore on Ev. section 1073, page 1264.
In Wiedeman v. Walpole, 24 Q. B. Div. (L. R.) 537, it appeared in an action for breach of promise of marriage that the defendant did not answer letters written to him by the plaintiff in which she stated that he had promised to marry her, and it was held that these letters constituted no evidence corroborating the plaintiff’s testimony in support of such promise within the meaning of a statute which requires corroboration in such case. The case was argued by eminent counsel and the only controversy was as to whether such unanswered letters afforded evidence of corroboration. Neither in these arguments nor in the opinions of the court is it suggested that these letters were inadmissible as evidence. It was shown there that the defendant received, but did not reply to any of them, and it was sought to draw therefrom the inference that this constituted an admission of the facts therein stated. Kay, L. J., said: “It is clearly a letter which nine out of ten men would “refuse to answer, and the refusal to answer it cannot be any corroboration. The real question is, whether the letters written by the plaintiff herself so imperatively required an answer, that the not answering is evidence that the defendant admitted the truth of the statement that he had promised to marry her. I decline to lay down any general rule on this matter. There are certain letters writ*804ten on business matters, and received by one of the parties to the litigation before the court, the not answering of which has been taken as very strong evidence that the person receiving the letter admitted the truth of what was stated in it. In some cases that is the only possible conclusion which could be drawn, as where a man states, T employed you to do this or that business upon such and such terms,’ and the person who receives the letter does not deny the statement and undertakes the business. The only fair way of stating the rule of law is that in every case you must look at all the circumstances under which the letter was written, and you must determine for yourself whether the circumstances are such that the refusal to reply alone amounts to an admission.”
In Lee v. Cooley, 13 Ore. 433, 11 Pac. 70, which was an action by a father for the seduction of his daughter, the plaintiff offered and the court admitted in evidence a letter written by the daughter after the alleged seduction and before the commencement of the suit, in which she accused the defendant of getting her into trouble, and calling upon him to marry her as he had promised. This letter was delivered to the defendant in person by the plaintiff (father) while the defendant was plowing in his own field. The defendant’s verbal reply at the time he read the letter was testified to by the plaintiff. It was there held that this letter with the defendant’s verbal reply thereto went on the footing of conversations between the parties. It was said, however, in the opinion that it ought doubtless to appear to the court that the letter was offered in good faith to get the defendant’s declaration made in reply thereto, as well as the letter, before the jury.
A well accepted instance of an admission is the failure to dispute an account rendered, which after the lapse of *805a reasonable time amounts to an admission of its correctness. Such letters have frequently been admitted in civil cases.
In Gaskill v. Skene, 19 L. J. Q. B. 275, 14 Jur. 597, 117 Eng. Rep. (Full Reprint) 256, an unanswered letter of the plaintiff to the defendant with reference to a disputed account was properly received as being in substance a demand and containing only such statements as might fairly accompany a demand.
There is a note on the subject in 8 A. L. R., page 1168, and a number of cases, English and American, are cited, holding that an unanswered letter is admissible on behalf of the writer to show a demand made or notice given thereby, citing Hays v. Morgan (1882), 87 Ind. 231; Sonnesyn v. Hawbaker (1914), 127 Minn. 15, 148 N. W. 476; State, Hand, Prosecutor v. Howell (1897), 61 N. J. L. 142, 38 Atl. 748; Allen v. Peters (1860), 4 Phila. (Pa.) 78; Murphey v. Gates (1892), 81 Wis. 370, 51 N. W. 573; Keen v. Priest (1858), 1 Fost. & F. (Eng.) 314.
There is certainly nothing in this letter which the prosecutrix might not have said directly to the accused; in fact, the case has this peculiar feature, that it was handed by her to the accused in person and hence bears close relation to an oral statement made by her to him. He made no reply in writing — indeed, he denies that he ever received it; but his oral reply to her father was in effect a reply to the letter, promptly given, and was an emphatic refusal to accede to her demands. Her father testifies that the letter itself fell out of the pocket of the accused while he was making his escape through a window immediately following their interview. The letter then is not hearsay, but contains matter identical with that to which she could testify. This being true, I am unable to agree that its admission was either illegal or prejudicial.
*806When objection was made to its introduction, no ground therefor was stated, and so, under well established rules, if any part of it was admissible upon any ground the exception is not well taken. Warren v. Warren, 93 Va. 73, 24 S. E. 913; State v. Hood, 63 W. Va. 182, 59 S. E. 971, 15 L. R. A. (N. S.) 448, 129 Am. St. Rep. 964; Hubbard v. Equitable Life Ins. Co., 81 W. Va. 663, 95 S. E. 814, 4 A. L. R. 886.
I do not question the general rule that unanswered letters in the possession of an accused person are inadmissible to show an admission or confession by such person. We have here, however, no such case for two reasons — first, the demand contained in the letter, that is, the demand to marry her, was answered by a prompt and emphatic refusal; and, secondly, because there is nothing in the letter which, if not answered, could, in any event, be construed as an admission by him of any essential element of the specific crime charged. Indeed, the letter does not charge the crime of seduction under promise of marriage. I think, therefore, that as she could say to him orally all that she said in the letter, she was equally free to express it in writing, and that it was' admissible just as her evidence of such an oral demand would have been admissible, as showing her conduct at that time. The letter, indeed, is of the character of an action rather than of a statement — of conduct rather than accusation — and the contemporaneous acts of the parties in such cases are certainly admissible.