Riley v. State

• Decision Date: 13 July 1914
• Court: Mississippi Supreme Court
• Parties: RILEY v. STATE

65 So. 882

107 Miss. 600

RILEY v. STATE

Supreme Court of Mississippi

July 13, 1914

March 1914

APPEAL from the circuit court of Wayne county. HON. J. L. BUCKLEY Judge.

Jim Baley was convicted of murder, and appeals. This was heard on suggestion of error.

The facts are fully stated in the opinion of the court.

Reversed and remanded.

S. M Johnston and J. A. Anderson, for appellant.

Here we have the wife accusing the husband of the killing of the deceased. And from the statement of the wife we see that it is not her intention to accuse the appellant of the crime but that she is deploring the fact "that she must go to the penitentiary" while the appellant lays around here with another woman." The minds of both parties are evidently filled with thoughts of the "other woman," and while in a fit of jealousy the wife accused her husband of the crime. Is the declaration then of an excited person accusing another of a crime, of such potency, that it calls for a reply from the accused. Our idea of an accusation in order to merit a reply, must be made by a cool, serene, calm and deliberate mind, whereby the person accused may understand from the manner of the statement he is expected to make a reply. In Massachusetts v. Kenney, 12 Metcalf 235, 46 American Decisions 672, the court says: "Where two watchmen arrested A and carried him to prison for robbing B, who also came, saying: 'That man has stolen my money,' and A was seen by C to hide a bag on the shelf in the prison as he was about to be locked up, and C immediately got the bag of money when B said: 'it was his bag and all the money he had,' to all of which A made no reply, on an indictment against him for stealing the money, it was held that the declarations of B were not evidence of A's admissions, either of the stealing or that the money was B's. The court further says that they were made by an excited, complaining party to such officers, who were just putting him into confinement." Upon these statements of facts a new trial was granted. Nor was the defendant at bar in the calm tenor of his mind. Confusion upon confusion was hurled into his brain; worry after worry weighed upon his mind. His wife had just been convicted of murder, he himself was under indictment for the same crime, his wife was accusing him of loving another woman, and is it a wonder that he, himself, should come out of his lethargy, and make a reply where the controversy was about the woman. "Do your honors think that under the circumstances, your appellant was in duty bound to make a reply, if so, you must pardon something to the frailties of mankind." We don't think that these facts meet the requirements of number one and two.

Your honors must remember that admissions by acquiescence must be weighed carefully for "trifles light as air, sometime become confirmations strong as proofs of holy writ." Ofttimes the shrewd criminal's acts are in harmony with innocence, while a good, innocent man, will blush, and sometimes startle under the torture of false accusation. Even confessions actually made by the defendant are looked upon with the closest scrutiny by all courts, and if there is anything suspicious about the looks of them they are not admitted as evidence. Surely then your honors are not going to admit as evidence the mere shadows of confession, only skeletons of evidence.

In 123 Mass. 440, the court held that where an accomplice of the defendant, accused the defendant, to an officer, of giving him a stolen watch, the accused was not called upon to reply to or contradict any statements made in his hearing. Commonwealth v. McDermott, 25 American Reports 120, 123 Mass. 440.

Your honors readily see that certain circumstances do not compel the accused to make a reply. In both of the above cases the accused was in custody of the law. Unless the circumstances are so plain that he could answer, by the force of the accusation and by his environment, then we contend that he had a perfect right to stand mute.

Your defendant had already been accused of crime by an indictment, and by an affidavit in the lower court. Is it to be said that he must, at every time the accusation is thrown into his face, make denial after denial? Surely the defendant was not called upon to deny this charge.

For the foregoing reason, attorneys for the appellant think that your honors should reverse appellant's case and grant unto him a new trial.

Geo. H. Ethridge, for appellee.

Counsel for the appellant have objected to the effect of the statements made by Mrs. Riley to Mr. Riley as being incompetent on the theory that the probative effect of such evidence flows from the statement of the wife and inasmuch as she was incompetent to testify against the husband directly, she could not testify against him indirectly. Counsel for appellant are mistaken in assuming that the probative effect of this statement arises from the statement made by the wife but it arises from the admission of the husband. The true theory of the law on this subject is that the statement made in the presence of such a person, charging him with crime, and which he would ordinarily feel impelled to deny, is a tacit admission of the truthfulness of the statement. The probative effect of such evidence is derived from the failure of the party to deny. It is treated as an admission coming from the party and such being the case it doesn't matter who addresses the charge to him or makes the charge which he is called upon to deny or which he would naturally deny if the statement were untrue. The competency of the witness making the statement which he has not denied has nothing to do with the matter. At common law, quite a number of parties were incompetent to testify, but I think it would not be assumed that a statement made by such party in the presence of another person which such other person failed to deny would be any less effective when made by an incompetent witness than it would be if the witness were competent.

At common law, an infidel or an atheist was absolutely incompetent to testify. It would not prevent a party being called upon to respond to an accusation made him in any such case. Under the laws of this state, at present, a person who has been convicted of the crime of perjury or subornation of perjury is absolutely disqualified from testifying in court, still they might make a statement in the presence of another party and the failure of such party to deny it would have the same probative effect as if the charge was made by a competent witness.

The question of evidence in this case does not arise on the ground of the incompetency of the wife testifying against her husband. If the conversation was privileged at all, it was on the theory of privileged communications or conversations between husband and wife growing out of the marriage relation and the public policy which ordinarily protects conversations between husband and wife from being given in evidence against either party.

It is stated in 6 Cyc. of Evidence, 897, clause "c" "Basis of Rule" as follows: "The basis of this rule excluding communications or conversations between husband and wife during coverture, is public policy and is wholly independent of any question of interest or identity.

And this same public policy is very generally recognized by the statutes, at page 906 of 6 Ency. of Evidence, under the heading of "Conversations in Presence or Hearing of Third Person," it is said: "Conversations between husband and wife, or admissions by one to the other, in the presence of the third person, are not privileged, and can be testified to by the hearer. And it has been held that a conversation between husband and wife might be testified to by a concealed listener who overheard it. It is held, however, that a wife is not a competent witness to prove what was said in a conversation by another person with her husband, nor to prove any act done in connection with such conversation and which might be explained thereby."

In Allison v. Barrow, 3 Coldwell, 414, 91 American Dec., 291, it is stated that conversations between husband and wife when made in the presence of a third person do not belong to the class of privileged communications and may be given in evidence against the husband. The force and effect of the admission depend upon the circumstances upon which it is made.

In discussing the question of privileged communications between attorney and client, which are ordinarily privileged, it was held in Whiting v. Barney, 86 Am. Dec. 385, 80 N.Y. 380, that such communications were not confidential and privileged when made in the presence of a third person. See also: Gaynon v. People, 127 Ill. 507; 21 N.E. 525; Fay v. Guynon, 131 Mass. 31; State v. Dray, 55 Kan. 135; 39 Pa. 1050; Phoenix F. & M. Co. v. Shoemaker, 95 Tenn. 72, 31 S.W. 270. And this is true even where the conversation was overheard by a concealed listener. Rex v. Simmons, 6 Car. & P. 540; 25 Ecl. 565; Leon v. Prowdy, 154 Mass. 488, 28 N.E. 908; Commonwealth v. Griffin, 110 Mass. 181; People v. Hayes, 140 N.Y. 484, 35 N.E. 951, 37 Am. St. Rep. 572; 23 L. R. A. 830; Wheeler v. Campbell, 68 Vt. 98; 34 Atlantic 35; State v. Center, 35 Vt. 378; Knight v. State; 114 Ga. 48, 39 S.E. 928.

In 1 Encyclopedia of Evidence, under the head of "Admissions," page 367, in subdivision, "From Silence and Acquiescences," it is said: "So the silence of a party, when a statement is made in his presence against his interest, and is heard and understood by him, and is made in such way as to call upon him to deny it, if true, and the facts are within his knowledge, and the statement is made under such circumstances as naturally to call for a reply, amounts to an admission of the truth of the statement made, and may be sufficient to...