specially concurring.
I concur with the majority decision that Edmonds’ testimony of an out-of-court statement by Lyda was admissible. I specially concur because my reasoning for holding it admissible may be different than that used by the majority.
The majority of the Court of Appeals held that the testimony of Edmonds of Lyda’s statement was admissible “as an exception to the hearsay rule under ORS 41.900(3).”
ORS 41.900(3) provides:
“Evidence may be given of the following facts:
"* * * *
“(3) A declaration or act of another, in the presence and within the observation of a party, and his conduct in relation thereto.”
*40This court has relied upon this statute on many occasions. We have consistently interpreted it as follows:
“This enactment recognizes a well-established rule of evidence, which is to the effect that when a declaration is made in the presence and hearing of a party, who understands the full import thereof and is at liberty to reply thereto, and the utterance is made by such a person and under such circumstances as naturally to call for an answer, a failure to deny an assertion that is adverse to the known rights or interests of such party is tantamount to an implied admission of the truth of the affirmation: * * Patty v. Salem Flouring Mills Co., 53 Or 350, 353, 96 P 1106, 98 P 521, 100 P 298 (1909).
In some of our cases there is doubt whether the statement was made under circumstances “naturally * * * call[ing] for an answer.” For example, Ross v. Hayes, 176 Or 225, 229-230, 235-236, 157 P2d 517, 158 ALR 452 (1945). However, in those cases the court proceeded upon the theory that it was a statement that called for a denial if the party did not believe the statement to be true.
Lyda’s statement that the bag contained some twigs and stems of marijuana and he would sell the bag for $1.00 did not “naturally # * call for an answer” by the defendant. Nothing in the surrounding circumstances indicates that the defendant’s failure to deny Lyda’s statement evidenced any adoption of his statement. For this reason, OES 41.900(3), as previously interpreted by this court, does not authorize the admission of Edmonds’ testimony of Lyda’s declaration.
OES 41.900(3) construed literally would support the admission of the testimony. The statute has no express requirement that the declaration of another *41in the presence and observation of the defendant be of the kind that “naturally * * * call[s] for an answer.” The statute literally provides that any declaration made in the defendant’s presence is admissible. This literal interpretation, however, has found no support in our decisions and has been rejected by the writers. 4 Wigmore, Evidence (3d ed), 71, § 1071; 1 G-reenleaf, Evidence (Redfield’s ed), 225, n 3. The criticism is sound and based upon the proposition that merely because an out-of-court statement is made in the defendant’s presence does not make it any more trustworthy than other out-of-court statements.
In State v. Goodin, 8 Or App 15, 492 P2d 287 (1971), the Court of Appeals may have intended to hold that an out-of-court statement is admissible merely because it is made in the presence of the defendant. If that was the court’s intention, it did not correctly state the law.①
I do not find it necessary to decide whether ORS 41.900(3) should be extended beyond its past interpretation to hold Edmonds’ testimony admissible. I am of the opinion that Edmonds’ testimony is admissible under the common-law rules of evidence. It is admissible because it explains the defendant’s subsequent conduct which was admissible, that is, his purchasing the bag and its contents for $1.00 and later chopping up the contents and selling them for $5.00.
I do not regard Lyda’s out-of-court statement as hearsay because it is admissible, not as evidence of the truth of its assertion, but as giving meaning to the defendant’s responsive conduct. This is the reason *42why out-of-court statements in the “admission by silence cases” are admissible. McCormick states:
“Obviously, proof of the party’s conduct requires proof of the statement itself to which he has thus reacted. The statement technically avoids the hearsay objection, since it is not offered as evidence of the truth of its assertions, but merely as giving meaning to the defendant’s silence or evasive response. * * McCormick, Evidence, 529, § 247 (1954).
Professor Maguire agrees, stating: “Yet we are not admitting B’s [Edmonds’ testimony of what Lyda said] hearsay, but rather A’s [defendant’s] reflection thereof. This is fundamental and usually, though not invariably, recognized.” John M. Maguire, Adoptive Admissions in Massachusetts, 14 Mass L Q 62, 65 (1929).
To illustrate this difficult concept of the hearsay problem, — assume the witness testified that the declarant stated in the presence of the defendant that defendant was going too fast and the defendant was silent; assume the circumstances were such that if the defendant had not been going too fast he would have denied the declaration. The evidence is admissible. The declarant’s statement is not proof that the defendant was going too fast. The evidence that defendant was going too fast is his silence in response to the declarant’s statement. Admittedly, there is a danger that the trier of fact may accept the statement itself as evidence of the fact asserted; nevertheless, weighing the factors of probity against prejudice, the courts hold the declaration is admissible. McCormick, supra, at 529.
In the instant case, Lyda’s declaration that the bag contained the leftovers from the marijuana cig*43arettes and that he would sell the bag for $1.00 is not competent evidence that the bag actually contained marijuana. That evidence is the defendant’s responsive conduct, that is, his looking in the bag, his purchase, his chopping up the residue and his sale for $5.00. It is immaterial whether Lyda’s statement is true or false. The defendant’s responsive conduct is evidence of his opinion that the bag did contain marijuana and that is competent, sufficient evidence that the bag did contain marijuana.
O’Connell, C.J., joins in this specially concurring opinion.The witness’s testimony, however, in that case was admissible for another reason.