I concur in the judgment of affirmance but do not agree in the assumption that certain accusatory statements were erroneously admitted in evidence. These statements were properly received.
The trial court admitted in evidence over the objection of counsel for each defendant, as the majority opinion states, a statement of Mrs. Leary consisting of questions asked her by Officers Hurst and Brown about 5 p. m. on December 18th, in the presence of Crain, Leary, and some four other officers. In that statement Mrs. Leary reaffirmed her previous statement of December 15th, which she had read and initialed as correct earlier in the afternoon, and she also answered further questions. At the conclusion of the questioning, the following took place: “Q. (By officer). Bill, you have heard Mrs. Leary’s statement, is there anything you want to add to it or anything you want to say? William Crain: I have nothing to say. Q. How about you, Dan? Daniel Leary: All I can say is I don’t like it very much. Q. Do you deny it? (To that question there was no answer.) Q. Do you Bill? William Crain: Well, I’m kind of in the middle here, Captain. Q. Whatever you want to do. William Crain: I am going to deny it. Q. All right. ’ ’
It is the general rule in California, as elsewhere, as pointed out in my concurring opinion in People v. Simmons, ante, p. 723 [172 P.2d 18], that when a statement tending to incriminate one accused of crime is made in Ms presence and hearing, and is not denied, contradicted, or objected to by him, both the statement and the fact of his failure to deny are admissible in a criminal prosecution against him, as indicative of a consciousness of guilt, or as evidence of his acquiescence in its truth. (See People v. Simmons, supra, concurring opinion, and cases there cited.)
Here Crain objected to the admission of the reported account of the questioning of Mrs. Leary on December 18th on the ground that it was not a statement, that it was not the best evidence, that it was admitted under an improper instruction to the jury, and that there was a denial by Crain.
*737Although Mrs. Leary’s testimony was in question and answer form, it was a statement containing clear and unmistakable accusations against Crain and Leary. As one example of the accusations, Mrs. Leary told the officers that “Crain said that he had shot the man and let’s get going, so we took off and went home. ’ ’ The reaction of Crain to these accusations shows that he fully understood their import; that is, the conditions under which the trial judge was justified in admitting the statement in the first instance were fully met, for the circumstances show that Crain understood the statement and accusations, that they called for a reply, that he was free to make any response he might choose, and that his response was such that the jury might reasonably draw from it an inference of acquiescence or guilty consciousness.
The suggestion that the accusatory statement was not the best evidence because Mrs. Leary attended the trial and her testimony could have been produced, overlooks the fact that the statement was not admitted as evidence of the matters therein referred to, but solely for the purpose of showing the conduct of the accused in response to it. Had Crain promptly denied the accusations, there would have been no reaction to show or admission to introduce, and the statement could not have been received in evidence. But Crain’s remarks did not constitute a full and prompt denial. He first said, as hereinbefore quoted, “I have nothing to say,” then, “Well, I’m kind of in the middle here, Captain,” and lastly, “I am going to deny it.”
The reply, “I have nothing to say,” was not a denial of the accusations (People v. Edwards, 72 Cal.App. 102, 123 [236 P. 944]; People v. Egan, 77 Cal.App. 279, 282-3 [246 P. 337]; People v. Egan, 133 Cal.App. 152, 156, 158 [23 P.2d 1042]).
Crain’s second reply, “Well, I'm kind of in the middle here, Captain,” was certainly not a denial. It was stronger against him than if he had stood mute, or again said he had no reply to make. Crain’s third statement, “I am going to deny it,” was not a prompt and full denial. An analogous case is People v. Marineau, 55 Cal.App.2d 893, 905 [132 P.2d 22], where the defendant, “when asked if he had anything to add to the [accusatory] statement, replied by a negative sign, thus failing to deny the statement with which he was confronted, though given an opportunity to do so.” The statement was held to be properly admitted in evidence under instructions to the jury correctly limiting its purpose.
*738The eases relied upon by Crain are in harmony with the above pronouncements. In People v. Teshara, 134 Cal. 542, 544 [66 P. 798], the defendant “expressly denied” the accusatory statement; similarly in People v. Lapara, 181 Cal. 66, 71 [183 P. 545], when confronted with the accusation, . “Why did you kill this man . . the defendant replied, "I did not kill him. ’ ’ In each of these cases the prompt and full denial rendered the accusatory statement inadmissible. The other case cited by Crain, People v. Shellenberger, 25 Cal.App.2d 402 [77 P.2d 506], is authority only to the effect that where an accusatory statement is addressed to two defendants and only one of them makes a reply, “it does not present a situation under which an occasion, exists which would naturally call for a reply from the other defendant. ’ ’
In the present case the court instructed the jury that “when a defendant, under conditions which fairly afford him an opportunity to reply, stands mute in the face of an accusation of crime, or makes an equivocal reply which is not a direct denial of the charge or accusation, the circumstances of such silence on his part, or his conduct or his failure to make a direct denial may be taken against him as evidence indicating an admission of guilt, depending on the construction you place on his conduct or reply. In such eases the accusatory statement itself is not evidence but the conduct of the accused in respect to such accusation may be considered by you together with the accusatory statement itself for the purpose of determining his reaction thereto. If you find that accusatory statements were made to a defendant and you should find beyond a reasonable doubt that his conduct and reaction thereto were not those of an innocent person charged with crime under like circumstances, then you may consider both the accusation and defendant’s reply, otherwise you will totally disregard the entire incident and not consider it for any purpose. ’ ’
It is asserted that the giving of this instruction was erroneous because the accusatory statements were not put to the defendants in a sufficiently direct manner to call for an affirmation or denial and it is argued that therefore the only effect of the instruction was to confuse the jury. The case of People v. Shellenberger, supra, 25 Cal.App.2d 402, is cited in support of this claim. In that case it is said at page 407 that a similar instruction should not have been given “because nowhere in the transcript do we find evidence of any *739occasion when appellant remained silent in the face of an accusation which would naturally call for a reply.” In the present case an entirely different situation is presented. Crain, when confronted with the accusations, made three equivocal replies, none of which was a prompt and full denial. Hence the rule of the Shellenberger case is inapplicable, and the instruction was properly given.
At the request of Leary, an instruction was given to the jury which reads in part as follows: “Evidence concerning any statement made by one defendant as to any alleged offense or offenses, if said statement was made subsequent to the commission of the alleged offense, is not to be considered by you as evidence against the second defendant unless such statement was made in the presence of the second defendant; it is not to be considered by you as evidence of the alleged facts as stated therein, but is admissible solely to show what reaction, if any, the second defendant made to such statement in his presence. The question is whether his said reaction showed or tended to show an admission or confession or a consciousness of guilt. ...”
Whether this instruction, given at defendant Leary’s request, could be complained of by him is not involved in this appeal. But Crain asserts that Leary’s reaction to the accusations was “so incomplete, vague and uncertain as to give the, jury nothing definite to weigh without a further elucidation . . .,” and inasmuch as he, Crain, finally indicated a denial of guilt, the instruction unquestionably “established a prejudicial state of mind with the jury” and was prejudicial to his rights. Leary’s reply to the accusations has already been given. No prejudice, as claimed, is shown.
No error on the part of the trial court has been shown.
Spence, J., concurred.