#### STATE v. SAM BURNO, SIMON PORTEE and LAWYER TUCKER.

(Filed 27 January, 1931.)

1. Criminal Law G f — 'Failure of defendant to deny statement made in Ms hearing' implicating him in crime held competent evidence against him.

Where the defendant charged -with an assault with a deadly weapon has stated to the officer arresting him that he was at his home the night the offense was committed, and his wife, then in his presence and hearing, states to the officer that he was away from home that night until a much later hour, the statement of the wife was under circumstances calling for his denial, and his failure to do so was competent evidence of his admission for the jury to consider, its weight and credibility being for them to determine.

2. Criminal Law G q — Statement of wife to officers in presence of husband held not to he privileged communication and testimony thereof was competent.

Where the unanswered statement of the wife tending to show the guilt of the husband of a criminal offense is competent as evidence against him, the statute excluding testimony of communications between husband and wife has no application.

Staoy, C. J., dissenting; Bkogden, J., concurs in dissent.

Appeal by defendant Simon Portee, from *Oglesby, J.,*and a jury, at April Term, 1930, of RichmoND.

No error.

The above-named defendants were tried on a bill of indictment charging an' assault with intent to kill one Bostick Williams. All three of defendants were convicted of assault with a deadly weapon and the defendant, Simon Portee, appealed from such conviction and the judgment .of the court in which each of the defendants was sentenced to serve eighteen months on the county roads of Richmond County. The alleged assault was committed on 21 July, 1929.

Lawyer Tucker did not appeal. Sam Burno and Simon Portee appealed. See companion case, where no error was found in appeal of Sam Burno. Some of the assignments of error on this record are similar to those in the Burno case, and, being there considered, reference is made to that case.

The prosecuting witness, Bostic Williams, testified, in part: “I know the defendants, having known Burno about eight years; Simon Portee eight or ten years, and Lawyer Tucker four or five years. Burno was living in Hamlet but was running a drug store in Southern Pines. Portee and Tucker lived near me in the North Yard; no one lived nearer than 400 or 500 yards to me. . . . On Friday, while I was at home about midnight the defendants came to my house; they broke the door open and rushed right in on me. They all had sticks and they *143began to beat me, and I said, ‘What is the matter; wbat have I done *V*and they did not answer, but each one hit me a lick apiece. I was so unconscious I could hear them say something but could not understand it. They hit me as many as three times and I do not know how many more. These are the scars on my head from the licks. I did not come to myself until some time Monday, and when I did, I was lying across my bed with my clothes on. ... I was laid up between seven and eight weeks as near as I can remember.” '

The defendant, Simon Portee, denied his guilt and testified, in part: “I live in Hamlet, N. C. Been there between 25 and 30 years. I live in the North Yard. I was home on Saturday night, 21 July; I got home at 11:30. When I went home at 11:30, the 11:30 whistle blew when I got out of the ear and started in the house. They have a whistle in Hamlet that blows at 11:30 — the round-house whistle. I am employed by the Seaboard. It was around 12 when I retired. My wife- and children were at home that night. I don’t know what time my wife retired. She got up when the baby got sick and she said she stayed up until along about 1 or 1:30. ... I did not leave my house that night from the time I retired until I got up next morning. I heard Bostick Williams say on the stand yesterday that I hit him with some sort of stick. I never thought of such a thing, much less hit him. I would not hit him for anything. Old Bostick knows I am a friend to him and have been since he came in town. . . . (Cross-examination) : The officers come on Sunday or Monday and asked me where I was on that Saturday night, and I told them I got home at 11:30. My wife did not accuse me in the presence of the officers of having gone to Rockingham with a woman. She did not tell them in my presence that I did not get home until 1:30. I did not tell the officers I took a woman to Rockingham that night.”

Officer B. L. Finch, when recalled, testified, in part: “Q. When you went to investigate the whereabouts of Simon Portee, on the night this man was beat up, where did yo-u find him ? A. I found him at home the first time. Q. Did you have a talk with him at home in the presence of his wife ? A. I first talked to Simon and he told me he got home at 11 or something like that. His wife come up and wanted to know what was the trouble, and I asked her what time Simon got home, in his presence. (Simon objects.) (Offered for the purpose of contradicting Simon.) By Mr. Sedberry: Objection, as anything that his wife might have said is privileged and is not competent evidence against him. By the solicitor : I am offering it to contradict him. I am asking you first, what did Simon tell you, and all that he told you ? I ask you for the conversation you had with Simon Portee and his wife when they were both together as to his whereabouts on the night this man was beat up. By *144Mr. Sedberry: Objection to anything his wife said except in so far as it impeaches her. (Objection overruled; exception.) By the court: Was he present? A. Yes. (Objection; overruled; exception.) A. Simon said he got in about 11 o’clock and his wife come out to the car where Chief Miller and myself was, and I asked her — and he was present, standing there — and she said it was late in the morning after midnight, and Simon said he did carry a woman to Rockingham and was a little late getting back. And she told him if it was not for that old automobile he would not be in trouble; that that was keeping him out late at night. (Motion to strike out that part of the answer wherein witness has stated things that contradicted Victoria Portee unless it is limited to the impeachment of the witness. Objection overruled, and the defendant, Portee, excepts.)”

The defendant Portee offers in evidence the statement made by the prosecuting witness, Bostick Williams, which is read to the jury, and which is as follows. “I realize from what the doctor says that I may die. Around two o’clock, Sunday a.m., 21 July, 1929, Sam Burno, Simon Portee and James Tucker come to my house and broke the door open and Sam Burno hit me first, James Tucker hit me with a board, Sam Burno said that he would bring me down.”

The defendant duly assigned errors to the exceptions above set forth and appealed to the Supreme Court.

*Attorney-General Brummitt and Assistant Attorney-General Nash for Sie State.*

*J. G. Sedberry for Simon Portee.*

ClaeksoN, J.

Officer B. L. Finch, a witness for the State, had testi- ■ fied previously. The State had rested, then the defendant, Simon Portee, testified in his own behalf and, among other witnesses testifying for him, was his wife, Victoria Portee. Thereupon, Finch was recalled. He proceeded to testify as to a conversation he had with Simon as to when he had gone home the night of the assault. That evidence was as follows: “Simon said he got in about 11 o’clock and his wife came out to the car where Chief Miller and myself was and I asked her — he was present, standing there — and she said, ‘It was late in the morning— after midnight,’ and Simon said he did carry a woman to Rockingham and was a little late getting back. And she told him if it was not for that old automobile, he would not be in trouble — that that was keeping him out late at night.”

The question arises was the silence of Simon Portee, under the facts and circumstances above set forth, some evidence to go to the jury to contradict him. We think the evidence competent; the probative force was for the jury.

*145In Underbill’s Grim. Ev. (3d ed.), part see. 208, it is said: “Tbe silence of tbe accused as regards statements in bis bearing wbicb implicate bim directly or indirectly may be proved witb tbe statements, and from bis acquiescence tbe jury may infer that tbe statements arc true and that tbejr prove bis guilt. Silence is assent as well as consent, and may, where a direct and specific accusation of crime is made, be regarded under some circumstances as a gua-si-confession. An innocent person will at once naturally and emphatically repel any accusation of crime, as a matter of self-preservation and self-defense, and as a precaution against prejudicing himself. . . . For tbe silence to be equivalent to a confession, it must be shown that tbe accused beard, understood tbe specific charge against bim, and that be beard it under circumstances not only permitting bim, but calling on bim for a denial, taking into consideration all tbe circumstances and tbe persons who were present.” Part sec. 209: “Tbe silence of tbe accused may spring from such a variety of motives, some of wbicb may be consistent witb innocence, that silence alone is very slight evidence of guilt; and, aside from tbe inference wbicb may arise from tbe attendant circumstances, should be received with caution as proof of guilt.”

In *Guy v. Manuel,*89 N. C., at p. 86, *Ashe, J.,*speaking for tbe Court, said: “To make tbe statements of others evidence against one on tbe ground of bis implied admission of their truth by silent acquiescence, they must be made on an *occasion*when a reply from bim might be *properly expected.*Taylor on Ev., sec. 138; *S. v. Suggs, post,*527. But where tbe *occasion*is such that a person is not called upon or expected to speak, no statements made in bis presence can be used against bim on tbe ground of bis presumed assent from bis silence.”

*S. v. Suggs,*89 N. C., at p. 530: “Where a statement is made, either to a man or within bis bearing, that be was concerned in tbe commission of a crime, to wbicb be makes no reply, the natural inference is that tbe imputation is well founded, or be would have repelled it. *Guy v. Manuel, ante,*83; Whar. Ev., sec. 1136, and cases there cited.”

In *S. v. Martin,*182 N. C., at p. 850-1, is tbe following: “Tbe testimony of this witness as to statements made by tbe woman in tbe presence of tbe defendant was properly admitted. True, tbe witness said that tbe defendant bad been drinking, and was sitting in a corner of tbe room when tbe statements were made; but be testified also that tbe defendant, while near enough to tbe woman to bear her remarks, occasionally said something himself, and that tbe witness, although not positive, thought tbe defendant was awake. It was tbe province of.tbe jury to determine from tbe evidence whether tbe woman’s statements were made in tbe bearing as well as in tbe presence of tbe defendant, whether they were understood by bim, and whether be denied them or *146remained silent. *S. v. Bowman,*80 N. C., 437; *S. v. Crockett,*82 N. C., 599; *S. v. Burton,*94 N. C., 948; *S. v. Randall,*170 N. C., 762.”

In *S. v. Riley,*188 N. C., at p. 73-4, we find: “Among other evidence admitted as against Riley and Steelman, it was shown that the two had the stolen car at the home of Riley’s father, who lived near Pleasant Garden in said county, on Monday 9th, or Tuesday 10 December, 1923, and that defendant Steelman had there falsely introduced himself as a Mr. Brown of High Point. This testimony being from the police officer, S. J. Garnet, and John T. Carter, an agent, who testified that Steelman, having denied knowing anything about the stolen car, at the request of Mr. J. H. Riley, the latter was taken to the jail to see if he knew Steelman and could identify him as being the man who was with liis son, had the 'car at the home of the witness, and on the meeting Mr. Riley, the father, said: ‘Yes, sir, you are the man that was at my house and introduced yourself as Brown from High Point.’ True, this was a declaration of Riley, but being made in the presence of Steelman, who made no denial, it became a fact in evidence relevant to the issue. *S. v. Jackson,*150 N. C., 831.”

In *Comrs. v. Brown,*131 Mass., 69, it is said: “A statement, made in the presence of a defendant, to which no reply is made, is not admissible against him unless it appears that he was at liberty to make a reply, and that the statement was made by such person and under such circumstances as naturally to call for a reply, unless he intends to admit it; but if he makes a reply, wholly or partially admitting the truth of the facts stated, both the statement and the reply are competent evidence,” citing *Comrs. v. Kennedy,*12 Metcalf (Mass.), 235. *Boney v. Boney,*161 N. C., 614; *S. v. Walton,*172 N. C., 931; *S. v. Pitts,*177 N. C., 543; *S. v. Willoughby,*180 N. C., 676; *S. v. Butler,*185 N. C., 625; *S. v. Evans,*189 N. C., 233.

"We think in the present case the *occasion*called for the defendant to speak, his silence in not speaking was some evidence for the jury to consider, the probative force was for them.

Although the wife is not a competent witness against her husband, in a trial of a criminal action, her declarations made in his.presence and in the presence of a third party, and naturally calling for some action or reply, if untrue, he remaining silent, are admissible in evidence. The defendant’s exception and assignment of error to the admission of the testimony was on the ground that it -tfas, in effect, using the wife as a witness against her husband, contrary to the statute, is untenable.

In *S. v.*Graham, 194 N. C., at p. 466-7, *Adams, J.,*speaking for a unanimous Court, said: “Mrs. Doss Bowen was permitted to testify that a short time before the homicide the prisoner took a pistol from his pocket in her presence and in the presence of his wife, whereupon the *147latter addressing ber husband remarked, 'You broke in my trunk and got it.’ This was objected to; but the objection was properly overruled. Although the wife is not a competent witness against the husband in the trial of a criminal action, her declarations made in his presence, and in the presence of a third party, and naturally calling for some action or reply if untrue, he remaining silent, are admissible in evidence. *S. v. Record,*151 N. C., 695; *S. v. Randall,*170 N. C., 757; *S. v. McKinney,*175 N. C., 784; *S. v. Evans,*189 N. C., 233.”

For the reasons given, we find

No error.

Stacy, C. J.,

dissenting: The statements made by Yictoria Portee to officer O. L. Finch, in the presence of her husband, were offered for the express purpose of contradicting Simon Portee. Defendant’s motion to limit this evidence to impeachment of Yictoria Portee, who, in her testimony, denied making said statements, was overruled. The competency of these statements, therefore, depends upon whether the occasion was such as to render the defendant’s silence at that time tantamount to an admission by acquiescence of the truthfulness of said statements. S*. v. Jackson,*150 N. C., 831, 64 S. E., 376.

The rule, generally followed, is, that statements made to or in the presence and hearing of a person, accusing him of the commission of or complicity in a crime, are, when not denied, admissible in evidence against him as warranting an inference of the truth of such statements. 1 R. C. L., 479.

The fact that said statements were made by the wife of the defendant or one not competent to testify against him, while material, is not regarded as controlling in determining their competency. *S. v. Record,*151 N. C., 695, 65 S. E., 1010; *S. v. Graham,*194 N. C., 459, 140 S. E., 26; *S. v. McKinney,*175 N. C., 784, 95 S. E., 162; *S. v. Randall,*170 N. C., 757, 87 S. E., 227; *S. v. Freeman,*197 N. C., 376, 148 S. E., 450; 1 R. C. L., 480. The occasion, as colored by some circumstance or significant conduct on the part of the accused, is what makes such statements, otherwise incompetent as hearsay, competent as evidence. *S. v. Evans,*189 N. C., 233, 126 S. E., 607.

Indeed, it has been said that the acquiescence of a party, to have the effect of an admission, must exhibit some act of the mind, and amount to voluntary demeanor or conduct of the party, and whether it be acquiescence in the conduct or in the language of others, it must plainly appear that such conduct was fully known, or such language fully understood by the party, before any inference can be drawn from his passiveness or silence. The circumstances, too, must not only be such as afford him an opportunity to act or speak, but such also as would prop*148erly and naturally call for some action or reply, from men similarly situated. Taylor on Evidence, sec. 733.

"When a statement is made, either to a person or within his hearing, implicating him in the commission of a crime, to which he makes no reply, the natural inference is that the imputation is perhaps well founded, or he would have repelled it. *S. v. Suggs,*89 N. C., 527. But the occasion must be such as to call for a reply. “It is not sufficient that the statement was made in the presence of the defendant against whom it is sought to be used, even though he remained silent; but it is further necessary that the circumstances should have been such as. to call for a denial on his part, and to afford him an opportunity to make it.” 16 C. J., 659.

Was the present occasion such as to call for a reply from Simon Portee? I think not. *S. v. Ried,*178 N. C., 745. He had already, in effect, made a different statement to the officers. What more could he accomplish by denying again what his wife had said?

Silence alone, in the face or hearing of an accusation, is not what makes it evidence of probative value, but the occasion, colored by the conduct of the accused or some circumstance in connection with the charge, is what gives the statement evidentiary weight. *S. v. Burton,*94 N. C., 947; *S. v. Bowman,*80 N. C., 432. “To make the statements of others evidence against one on the ground of his implied admission of their truth by silent acquiescence, they must be made on an *occasion*when a reply from him might be *properly expected.*But where the *occasion*is such that a person is not called upon or expected to speak, no statements made in his presence can be used against him on the ground of his presumed assent from his silence.” *Ashe, J.,*in *Guy v. Manuel,*89 N. C., 82.

The character of evidence we are now considering is so liable to misinterpretation and abuse that the authorities uniformly consider it as evidence to be received with great caution and, except under well-recognized conditions, hold it to be inadmissible altogether. Hence, unless the party at the time was afforded a fair opportunity to speak, or the statements were made under circumstances and by such a person as naturally called for a reply, the evidence is not admissible at all. *S. v. Jackson, supra.*

In the instant case the defendant having, in effect, denied the statements once, evidently did not regard the occasion such as to call for their further contradiction. In this, I think he was correct. *Riley v. State,*107 Miss., 600, 65 So., 882, L. R. A., 1915 A, 1041.

But it is said that as to whether the occasion was such as to call for a reply from the defendant was a matter for the jury to determine in passing upon the weight of the evidence. *S. v. Martin,*182 N. C., 846, *149109 S. E., 74; *S. v. Walton,*172 N. C., 931, 90 S. E., 518; *S. v. Bowman,*80 N. C., 432; *S. v. Perkins,*10 N. C., 376. The law is otherwise with respect to confessions. *S. v. Andrew,*61 N. C., 205. “In this jurisdiction it is the province of the judge, and not that of the jury, to determine every question, whether of law or of fact, touching the admissibility of evidence.” *S. v. Whitener,*191 N. C., 659, 132 S. E., 603; *Munroe v. Stutts,*31 N. C., 49.

Actual confessions are not admissible against a defendant unless they are voluntarily made. *S. v. Newsome,*195 N. C., p. 566. Hence, “mere shadows of confessions,” such as arise from silence in the face of accusations, ought not to be received in evidence unless they amount to clear admissions by acquiescence.

BeogdeN, J., concurs-in dissent.