Upon rehearing, two questions are to be reconsidered: (1) Was the testimony of the police officer, relating to a statement of an unknown party, hearsay? (2) If so, did defendant's silence constitute acquiescence?
The relation by the witness of what an unknown third party said was clearly hearsay.
In Potter's Michigan Evidence, p. 2, the learned author succinctly stated:
"Hearsay evidence is a statement which a witness professes to have heard given by a third person as to some particular transaction or thing. Literally, what the witness says he heard another person say." *Page 434
While this is elementary and needs no justifying citation, we do quote the following observation by the Supreme Court of the United States in Donnelly v. United States, 228 U.S. 243, 273 (33 Sup. Ct. 449, Ann. Cas. 1913E, 710), relative to the rule of exclusion:
"The chief grounds of its exclusion are, that the reported declaration (if in fact made) is made without the sanction of an oath, with no responsibility on the part of the declarant for error or falsification, without opportunity for the court, jury, or parties to observe the demeanor and temperament of the witness, and to search his motives and test his accuracy and veracity by cross-examination, these being most important safeguards of the truth, where a witness testifies in person, and as of his own knowledge; and, moreover, he who swears in court to the extra-judicial declaration does so (especially where the alleged declarant is dead) free from the embarrassment of present contradiction and with little or no danger of successful prosecution for perjury. It is commonly recognized that this double relaxation of the ordinary safeguards must very greatly multiply the probabilities of error, and that hearsay evidence is an unsafe reliance in a court of justice."
In the case at bar the declarant was unknown, and there was no way open to check up on the testimony of the police officer.
I cannot yield to the view expressed by Mr. Justice POTTER. I accept the view of Chief Justice Marshall, as found inMima Queen and Child v. Hepburn, 7 Cranch (U.S.), 290:
"The danger of admitting hearsay evidence is sufficient to admonish courts of justice against lightly yielding to the introduction of fresh exceptions to an old and well-established rule." *Page 435
An apt statement of application of the rule to this case is found in the same work of Potter, Michigan Evidence, p. 314. We quote:
"Testimony of what another told witness as to who committed an offense is hearsay."
Defendant's silence did not make the hearsay testimony admissible for the purpose of identifying him as one of the robbers. He was in a house of prostitution, and not in the position of an intruder, called upon to explain the reason for his presence there. The hearsay statement was addressed to the officer to be acted upon at his peril. The rule of acquiescence, by reason of failure to deny an accusation, is fraught with many exceptions, and at its best brings about the weakest assumption known to the law.
History is replete with instances of denial of accusations by the guilty. In the dark ages of English law an accused who refused to plead to an accusation was adjudged guilty. Since then the law has made progress, and, in this enlightened age, an accused may stand mute and the law requires the entry of a plea of not guilty.
The arrest in the case at bar was made upon a verbal accusation, and, so far as the record discloses, the accuser has not been sought. It would seem that the officer, upon hearing the accusation leading him to make the arrest, would, at least, have inquired the name of the accuser.
We do not pass upon the question of defendant's guilt, but, if he is guilty, the law demands better evidence than what an unknown person in a house of prostitution said to a police officer.
Submission to arrest and keeping silent to an accusation is not an admission of guilt on a par with flight from justice, and never enough to convict *Page 436 an accused and send him to prison for a long term of years.
The conviction should be reversed, and a new trial ordered.
BUTZEL, J., concurred with WIEST, J.