concurring specially.
I would reverse for the additional reason that the testimony of the police officers quoting verbatim, the victim’s statement made at the hospital in appellant’s presence while in police custody was clearly hearsay and inadmissible. The line of cases cited in Division 1 of the per curiam opinion are not applicable to this situation inasmuch as they deal with situations where the state’s witness merely testified to the fact of identification without attempting to quote the words and language used by the identifying person. See Montos v. State, 212 Ga. 764 (6) (95 SE2d 792) (1956).
Neither was the testimony admissible under Code Ann. § 38-409 as an implied admission resulting from the appellant’s silence in the face of an accusatory statement. The statement attributed to the victim was made while the appellant was under arrest at which time he was under no obligation to make any statement or to *97contradict any accusatory statements made in his presence. The Fifth Amendment not only gives an accused the right to refuse to make a statement, as it might tend to incriminate him, but it gives him the right while under police custody to remain silent when another makes accusatory statements in his presence. United States v. Rodriguez, 498 F2d 302 (5th Cir., 1974); United States v. Brinson, 411 F2d 1057 (6th Cir., 1969); Ivey v. United States, 344 F2d 770 (5th Cir., 1965). The use of silence while under police arrest as an implied admission is a constitutionally forbidden penalty for exercising a constitutional privilege. Griffin v. California, 380 U. S. 609, 615 (85 SC 1229, 14 LE2d 106) (1965).
I am authorized to state that Justice Gunter concurs in this special concurrence.