
    Roy Parrott v. State.
    
      (Knoxville.
    
    September Term, 1911.)
    1. EVIDENCE. Of failure of accused to testify and deny testimony incriminating him is incompetent, and not admissible against him in a subsequent trial.
    The rule that statements made in the presence of the accused, charging him with crime, create a presumption against him, if not denied by him, does not apply to such statements made in the course of judicial proceedings, whether he himself he on trial, or the ease he one in which he is not directly concerned; for, if he himself he on trial, the constitution (art. X, sec. 9) protects him against compulsion “to. give evidence against himself,” and to admit such evidence would practically nullify the constitutional provision; and, if the trial be one in which he is not directly concerned, he has no right to interfere or intrude therein, and is not called upon to speak, and his failure to speak cannot, in subsequent direct proceedings against him, afford any presumption of acquiescence.
    Constitution referred to and construed: Art. 1, sec. 9.
    Cases cited and approved: Bell v. State, 93 Ga., 557; State v. Mullins, 101 Mo„ 514, 517; State v. Hale, 156 Mo., 102, 107, 108; Comstock v. State, 14 Neb., 205; People v. Willett, 92 N. Y., 29; Maloney v. State, 91 Ark., 485, 491, 121 S. W., 428; Commonwealth v. Zorambo, 205 Pa., 109; Broyles v. State, 47 Ind., 251; State v. Senn, 32 S. C., 392; State v. Boyle, 17 R. I., 537.
    2. SAME. Same. Compulsion of accused to testify, on cross-examination, as to incriminating testimony in committing trials not there denied by him, and charge of court thereon, constituting reversible error.
    In his trial under indictment, evidence was drawn from the accused, on his cross-examination, and over his objection, that in committing trials against him before a justice of the peace and before a United States commissioner, certain witnesses testified in his presence and hearing that he had sold them whisky, and that in said trials he (the accused) failed to testify and deny the statements of such witnesses; and the charge of the trial judge upon such evidence was to the effect that the failure of the accused to testify and deny such testimony would be a circumstance to which the jury could look, and give such credit as they thought it entitled to, as throwing light on the guilt or innocence of the accused, but not for any other purpose; and it is held that both the admission of such evidence and the charge of the court thereon constitute reversible error.
    FROM MoMINN.
    Appeal from tbe Circuit Court of McMinn County.— S. C. Brown, Judge.
    
      Eugene E. Ivins and E. L. Robeets, ior Parrott.
    Assistant Attobney-Geneeal Faw, for State.
   Me. Justice Neil

delivered the opinion of the Court.

The plaintiff in error being on trial in the circuit court of McMinn county under a charge of selling intoxicating liquors within four miles of an institution of learning in violation of the statute against such acts, evidence was introduced, over his objection, as follows: On cross-examination he was asked if Joe Taylor did not testify before a United States commissioner in his presence and hearing that he had sold whisky to said Taylor, and further if he did not fail to go on the witness stand and deny it; also, the same question as to Ham Hacker; also, whether Ham Hacker had not téstified before a justice of the peace on a committing trial the. same thing in his presence, with a like failure on his part to go on the witness stand and deny it — to all of which questions he answered, “Yes.” On this evidence the trial judge charged the jury as follows:

“Gentlemen of the jury: I instruct you that it is competent in any case to prove that a statement has been made in the presence of the defendant, by which the defendant is accused of wrongdoing, and that the defendant admitted the truth of the statement or remained silent failing to deny it. And in this case if you should be satisfied from the evidence that witnesses at other trials had testified that the defendant did that which he now denies, and that he was present, and failed to then deny the charge, this would he a circumstance which you could look to, giving to it such credit as you think it is entitled to as throwing light on the defendant’s guilt or innocence in the present case, but you cannot look to it for any purpose than those hereinbefore indicated.”

The evidence was incompetent, and the charge was erroneous. The rule that statements made in the presence of an accused person charging him with crime create a presumption against him, if not denied by him, does not apply to such statements made in the course of judicial proceedings. Bell v. State, 93 Ga., 557, 19 S. E., 244; State v. Mullins, 101 Mo., 514, 517, 14 S. W., 625; State v. Hale, 156 Mo., 102, 107, 108, 56 S. W., 881; Comstock v. State, 14 Neb., 205, 15 N. W., 355; People v. Willett, 92 N. Y., 29; Maloney v. State, 91 Ark., 485, 491, 121 S. W., 728, 134 Am. St. Rep., 83; Com. v. Zorambo, 205 Pa., 109, 54 Atl., 716; Broyles v. State, 47 Ind., 251; State v. Senn, 32 S. C., 392, 11 S. E., 292; State v. Boyle, 13 R. I., 537. If the party in question be on trial, he cannot thus be forced to give evidence against himself in violation of the constitutional guaranty which protects him against incriminating himself contrary to his will. If the trial in progress be one in which he is not directly concerned, as for example a coroner’s inquest, one of the cases above cited, he has no right to interfere or intrude therein, and is not called upon to speak, and his failure to speak cannot in subsequent direct proceedings against him afford any presumption of acquiescence. If in any former trial he was justified in refraining from speaking by the constitutional provision above referred to, be rightly refrained, and Ms conduct should not he used against him in any subsequent trial. To grant its use would practi-. eally nullify the constitutional provision. Therefore in no event is such evidence competent against him.

For the error indicated, the judgment of conviction will be reversed, and the cause remanded for a new trial.  