delievered the opinion of the court.
Appellant was convicted of the murder of Julius Bee and appeals. His wife was also convicted of the same crime before appellant was tried. Some weeks since this case was affirmed without an opinion. The case is here now on suggestion of error.
After the conviction of Mrs. Riley, she and her husband, appellant, were confined in jail together with a number of other persons charged with crime. Ovér the objections of appellant, the trial court permitted several of the inmates of the jail to testify that they *606overheard a conversation between appellant and his wife. We gather from the record that the alleged conversation occurred some time late in the night. The conversation awakened several of the prisoners, and it is evident that neither appellant nor his wife knew that they had eavesdroppers. The witnesses for the state practically agreed upon what was said in this conversation, and it amounts to about this: The wife was bemoaning her fate, and said to appellant that he had forced her to take the entire responsibility, when he knew that he had made her kill Julius Bee. The only reply made by appellant to this charge was to say:
“Hush, Bessie, if you go to the penitentiary, you won’t be gone over six months before you get a pardon. If they convict me, they will hang me. ’ ’
The conversation as related by the state’s witnesses varied somewhat, but what has been stated is substantially the evidence of all.
It is contended by appellant that, inasmuch as the wife could not have been introduced to testify that she had charged defendant with the crime and he did not deny the charge, it follows that others could not be introduced to testifv to this charge, citing Pearson v. State, 97 Miss. 841, 53 So. 689.
Again, it is insisted that defendant was not called upon to deny what his wife said under the circumstances.
The rule and the reasons for admitting testimony of this kind is clearly stated in 1 Encyclopedia of Evidence, p.367, viz.:
‘ ‘ So the .silence of a party when a statement is made in his presence, against his interest, and is heard and understood by him, and it made in such way to call upon him to deny it, if untrue, and the facts are within his knowledge, and the statement is made under such circumstances as naturally to call for a reply, amounts to an admission of the truth of the statement 'made, and may be sufficient to establish the fact ás ¿gainst him.”
*607We think appellant misconstrues Pearson v. State, supra. In that case a witness for the state was permitted to testify to conversation between the defendant and his wife in which the wife charged the husband with the crime. It was not claimed .that the wife knew anything about the facts, but simply based her charges upon what some other person had told her.
We do not understand that the court in the Pearson case condemned the evidence because of the incompetency of the wife to testify against her husband, but for the reason that the statement made by her was purely hearsay.
All of the evidence here in question shows that the defendant was sympathizing with his wife and was trying to comfort her with the assurance that she would soon be released. She was naturally hysterical and much depressed. Under these circumstances, was the defendant called upon to repudiate what his wife said to him? Was the charge “made in such a way as to call upon him to deny it”?
It is not always conducive to domestic peace for a husband'to contradict the statements of his wife, and ordinarily the wise husband attempts to soothe and placate his irate spouse, rather than to question her statements, however wide of the truth they may be. A few husbands are brave or foolhardy, and at all hazards risk the consequences; but the law does not fix rules for the guidance of the superman, but all rules are adopted for the average. Of course, a judge far away from “the firing line” incurs no immediate danger bv lining up with the superman, but we who are fashioned in the average mold shrink from even that form of bravado. Speaking for the average man, we are of opinion that appellant was not called upon to deny the statement of his wife, made under the circumstances surrounding them at the time. His failure to deny, dispute, or hedge meets with our idea of what a normally prudent and *608sensible man would naturally have done, and therefore the evidence had no probative value, but was probably very damaging to him with the jury.
The suggestion of error is sustained.
Reversed and remanded.