
    No. 152
    FAINBROUGH v. STATE
    Ohio Appeals, 8th Dist., Cuyahoga Co.
    No. 5323.
    Oct. 13, 1924.
    333. CRIMINAL LAW—Silence as an admission of guilt may be shown only under certain circumstances.
    480. EVIDENCE—Declarations made in presence of accused followed by silence to be received with caution.
    Published only in Ohio Law Abstract
    Attorneys—Alfred L. Steur for Fainbrough; E. C. Stanton for State; both of Cleveland.
   LEVINE, J.

Epitomized Opinion

Fainbrough and one Boehlin were indicted for the murder of a policeman. Fainbrough while at the police station after his arrest was confronted by Boehlin who narrated in Fainbrough’s presence an account of the murder in which he declared that he and Fain-brough were standing on a corner when several policemen approached and that Fainbrough fired at them, killing one. During this narration Fainbrough attempted to ask a question, but was told by the police inspector that he could not ask questions at that time and to wait until Boehlin finished. At the trial the State offered in evidence the statements made by Boehlin at the police station in Fainbrough’s presence, together with evidence of Fain-brough’s silence at the time. The trial court admitted this evidence over objection. The jury returned a verdict of guilty as charged with the recommendation of mercy and the court pronounced sentence to the penitentiary for life.

Fainbrough prosecuted error. Held:

It is not every instance of silence in the hearing of a declaration that renders it admissible as an admission of guilt. The question always is: was the prisoner called upon to speak and if he attempted to speak did he have permission to do so? This kind of evidence should always be received with great caution. The statements made by Boehlin in Fain-brough’s presence were inadmissible, and their admission was prejudieal error. Reversed and remanded.  