Raymond v. State , 154 Ala. 1 ( 1908 )

TYSON, C. J.

It is undoubtedly the law that the silence of the defendant is not competent evidence against him, as an admission of the truthfulness of a statement of another made to him or in his presence, unless the statement was of such a character as to call for a reply by him; and it must also appear that the accusing statement, made to him or in his presence, was under such circumstances that he had a right to deny the truthfulness of the charge made against him. But the fact alone that defendant was under arrest at the time the incriminating statement was made calling for his denial does not, in this jurisdiction, render the implication of guilt from his silence inadmissible as evidence. His failure to speak, in denial of the truthfulness of the accusation or of a statement involving an accusation of guilt, is in the nature of a confession; and this court has uniformly held that the mere fact that the accused is under arrest at the time of his making a confession does not render it inadmissible. — McElroy v. State, 75 Ala. 9, and cases there cited. For a full discussion of this question (which meets with our approval), see Kelley v. People, 55 N. Y. 565, 14 Am. Rep. 342; 2 Wigmore on Evidence, p. 1258, § 1072.

It can scarcely be doubted that the statement of Mrs. Hewitt, made in the presence of the defendant, involved such an accusation of him as being the person who snatched her purse from her as called for a denial by him of its truhtfulness; and in order to establish the factum of defendant’s silence it was of course first necessary to introduce in evidence the statement made to him or in his presence to another. To this end the question objected to was permitted to be asked, and the answer to the question admitted in evidence. Neither the question or the answer was subject to the objections interposed, which were upon the grounds of illegality, irrelevancy, incompetency, and immateriality. Both question and answer were clearly' legal; and the answer, as evidence, was not only competent but relevant and material.

Just how the court can be put in error for not sustaining an objection to a proper question and an answer thereto we are unable to comprehend; and just how error has been made to affirmatively appear, as required before a reversal can follow, we are unable to see. By no known rules that we are aware of can it be held that the trial court’s ruling, which was correct when made, be made the predicate for error, in the absence of some further step by the defendant, taken in the court below, predicated upon, proper grounds. If defendant perceived that the statement of Mrs. Hewitt should have been followed up by the showing that he did not deny it, he should- have properly presented the point in the court below; and not contented himself with reserving exceptions to the overruling of his objections to legal and competent testimony. In short, he should have put the court in error, and shown the error by his bill of exceptions. We certainly cannot presume it.

We have said this much in answer to the suggestion that the record does not affirmatively show that' defendant made no denial of Mrs. Hewitt’s accusation — a question, in our opinion, not presented for consideration by the record. There is no merit in the remaining exceptions reserved.

Affirmed.

Haralson, Dowdell, Anderson, and Denson, J J., concur.