Dissenting Opinion by
Woodside, J.,April 19, 1955:
In my opinion the rule of evidence1 applied in Com. v. Vallone, 347 Pa. 419, 32 A. 2d 889 (1943) although having validity under certain circumstances, is nevertheless fraught Avith such inherent danger that failure of the appellate courts to assiduously and stringently police its use will result in great injustice.
No longer can one charged with crime remain si*175lent. When taken into custody or questioned he must not only deny every accusation directed to him, but must be alert to every statement made in his presence lest his failure to speak up and deny some incriminating remark will be used against him as an admission.
As stated by our present Chief Justice in that case, “The accusatory statement, being hearsay, is not admissible as evidence in itself of the facts which it asserts, but merely to show what the charges were to which defendant offered no denial; its probative force is derived, not from the credibility of the accuser, but from the silence of the accused in response to it.”
Therein lies a danger which this case demonstrates. It is the use of the rule as a pretense for the admission of hearsay testimony.
The majority here condones, although it does not approve, the use of an accusation even when denied, thus permitting the Commonwealth to introduce the most damaging kind of hearsay testimony, to wit: that someone said the defendant committed the crime. The hearsay ivas not circumstantial evidence but direct evidence of the commission of the crime. The majority condones its admission on the ground that there was no specific objection when it was related by the first witness and therefore the relating of it by the second witness over objection was not prejudicial.
I cannot accept the conclusion that the error was not prejudicial. Because of the growing abuse of the rule by enforcement officers who, I think, are encouraged by the courts, and the frequent use of this type of testimony in trials, I feel it is incumbent upon us to recognize the inherent dangers in its abuse, and the gross injustice which results from our weak wrist tapping even when the error is flagrant.
I would grant the defendant a new trial.
Gunther, J. joins in this dissent.The rule is set forth as follows, at page 421, “. . . .when a statement made in the presence and hearing of • a persón is incriminating in. character and naturally .calls for a. denial but. is not challenged or contradicted by the accused although he has opportunity and liberty to speak) the statement and the fact of •his failure to ’deny-‘ft are"-admissible-in evidence -as an -implied admission of.the-truth.of.ihe'.ehar,gesNhu$ .made.”;..;,;.....