John C. Deacon, Special Chief Justice.
The appelat years age, was charged by information, along with three other teen-agers, with first degree murder because of the death of Jimmy Wayne Wampler. Kagebein’s motion for a severance was granted, and after a jury trial, he was found guilty with no recommendation for leniency. Judgment was entered sentencing him to death in the electric chair. This Court appointed new counsel to represent appellant on appeal. Twelve points for reversal are presented, some of which have merit and require reversal.
A confession taken from Kagebein was introduced into evidence and Kagebein also testified personally. None of his companions testified, all of them refusing to answer questions on the ground that it might incriminate them.
The evidence showed that on Novermber 7, 1970, Joe Newton Kagebein, who had been living with his grandmother in DeWitt for a few months, was in the company of three older teen-age boys, Teddy Kittler, Benny West and Larry Mannis. Mannis borrowed a car, got some money and bought some beer. They consumed the beer, and around 9:00 p.m. Mannis went to a liquor store in Gillett through the back entrance, but was told by the proprietress that she was not going to sell him anything to drink because of his age. Kagebein says he was asleep at that point, but awoke sufficiently to hear the other boys talking about a man that would buy them some beer if they would let him “do that act on them.” He fell asleep again and says he was not awake when his companions came in contact with Jimmy Wayne Wampler, a 27-year-old Cross County farmer.
About 10:00 p.m. that night,.Wampler came into the same liquor store where Mannis had been declined service and Wampler botight three six packs of beer. Kagebein says that he was first aware of Wampler when he awoke and found Wampler and the other boys arguing in the car. Kagebein noticed that when Wampler got out of the car he was wearing a ladies’ night gown.
Neither Kagebein’s confession nor his testimony presented a very clear picture of the facts, The account was disjointed and difficult to follow. Kagebein did testify that he was sick from the’ beer that he had consumed, that he was with Benny West on tbe other side of the car, and that darkness prevented him from' seeing whát was going on a part of the time. He said that Wampler ran after the boys and that Wampler knocked one of the boys against the car and knocked Teddy Kittler' into a ditch. He said that all of the boys held.guns on Wampler at different times, but claimed that, this was done to keep Wampler off them. Kagebein did admit that he hit Wampler once on . the right side of the head with a .22 to protect the other boys and that after he struck this blow, Mannis took' the grin away .from him. His confession contained a statement that all four of the boys knocked Wampler down, and that Wampler yelled at them not to shoot him. Kágebein said that Teddy Kittler shot Wampler while Wampler was on the grpund, but that he did not know wbo ádministered the bruises arid marks on Wampler’s back and chest.
After Wámpler was shot, the boys started back to DeWitt and they let Teddy Kittler out at his home. The other three boys then drove on to the court square in DeWitt and located Chief of Police James Mason and Officer Wendell Best, who were on patrol. Mannis and West got out of the car and began telling them about a killing south of DeWitt. Mannis was in a very upset condition and fainted on the sidewalk. Mason and Best testified that there was no evidence of physical violence on any of the boys and that the boys did not appear to be drunk. Chief Mason radioed other law enforcement officers and they had Wes.t lead them to the scene described by the boys. When the' officers arrived there they found Wampler’s body in a bruised and mutilated condidon. The only clothes on the body were a pair of boots and a torn piece of ladies’ panties on one leg, with a ladies’ night gown lying under and partially draped over the head. Wampler’s clothing was found lying in a neat bundle on one side of his truck.
The first point urged for reversal is that the introduction of hearsay statements allegedly made in the presence of appellant was a denial of his right to remain silent. On two occasions during trial, the State elicited testimony, over objection, from the police officers to make a showing that statements were made by Kagebein’s companions in his presence while he and the others were in police custody, and that Kagebein remained silent in the face of the statements.
Patrolman James Oswald, one of the State’s witnesses, testified that he was at the hospital with Mannis and Kagebein, that Mannis was unconscious for about an hour, and that after the doctor revived him a little bit and Mannis kept saying he was seeing a dead man, a nurse or someone asked him, “How do you know it was a. dead man?” and that Mannis replied, “Because we killed him.” The State specifically asked patrolman Oswald whether Kagebein denied the statement, and received a negative reply from Oswald.
The second statement was detailed by Arkansas State Trooper Travis Nash who, over objection, with testimony to specifically indicate that Kagebein was in dose enough proximity to hear the remark, said that “one of the boys” was laughing about Joey jumping up and down on the man’s stomach after he was dead and that Kagebein did not deny the statement at the time.
The State’s questioning and the court’s ruling on the defense objections indicate that the testimony of Oswald and Nash was offered as an exception to the hearsay rule, commonly called the “tacit admission rule.” Kagebein was in police custody and in the presence of the police when both statements were made. He had not yet been advised of his rights and could not have intelligently waived them. Under these circumstances, Kagebein’s silence must be assumed to be an assertion of his right against self-incrimination. The introduction of the hearsay statements was a denial of Kagebein’s right to remain silent and constituted prejudicial error.
This rule affecting tacit admissions was stated in Miranda v. Arizona, 384 U.S. 436 (1966):
“In accord with our decision today, it is impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation. ■ The prosecution may not, therefore, use at trial the fact that he stood mute or claimed his privilege in the face of accusation.”
The effect of the Miranda decision upon the tacit admission rule has been recognized by this Court. Gross v. State, 246 Ark. 909, 440 S.W. 2d 543 (1969).
Ever prior to Miranda, our Court rejected this type of testimony under certain circumstances, as indicated by Anderson v. State, 197 Ark. 600, 124 S.W. 2d 216 (1939), where we said:
“ 'One cannot be compelled, when not offering himself as a witness in his own defense, to give evidence in court tending to incriminate himself. Much less should he be compelled to do so out of court. If silence in such case is evidence of guilt, then one charged with crime must, under penalty of himself creating most damaging evidence against himself in support of the charge, enter into a controversy of words with every idle straggler who may choose to accuse him to his face.’ Merriweather v. Commonwealth, 118 Ky.
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John C. Deacon, Special Chief Justice.
The appelat years age, was charged by information, along with three other teen-agers, with first degree murder because of the death of Jimmy Wayne Wampler. Kagebein’s motion for a severance was granted, and after a jury trial, he was found guilty with no recommendation for leniency. Judgment was entered sentencing him to death in the electric chair. This Court appointed new counsel to represent appellant on appeal. Twelve points for reversal are presented, some of which have merit and require reversal.
A confession taken from Kagebein was introduced into evidence and Kagebein also testified personally. None of his companions testified, all of them refusing to answer questions on the ground that it might incriminate them.
The evidence showed that on Novermber 7, 1970, Joe Newton Kagebein, who had been living with his grandmother in DeWitt for a few months, was in the company of three older teen-age boys, Teddy Kittler, Benny West and Larry Mannis. Mannis borrowed a car, got some money and bought some beer. They consumed the beer, and around 9:00 p.m. Mannis went to a liquor store in Gillett through the back entrance, but was told by the proprietress that she was not going to sell him anything to drink because of his age. Kagebein says he was asleep at that point, but awoke sufficiently to hear the other boys talking about a man that would buy them some beer if they would let him “do that act on them.” He fell asleep again and says he was not awake when his companions came in contact with Jimmy Wayne Wampler, a 27-year-old Cross County farmer.
About 10:00 p.m. that night,.Wampler came into the same liquor store where Mannis had been declined service and Wampler botight three six packs of beer. Kagebein says that he was first aware of Wampler when he awoke and found Wampler and the other boys arguing in the car. Kagebein noticed that when Wampler got out of the car he was wearing a ladies’ night gown.
Neither Kagebein’s confession nor his testimony presented a very clear picture of the facts, The account was disjointed and difficult to follow. Kagebein did testify that he was sick from the’ beer that he had consumed, that he was with Benny West on tbe other side of the car, and that darkness prevented him from' seeing whát was going on a part of the time. He said that Wampler ran after the boys and that Wampler knocked one of the boys against the car and knocked Teddy Kittler' into a ditch. He said that all of the boys held.guns on Wampler at different times, but claimed that, this was done to keep Wampler off them. Kagebein did admit that he hit Wampler once on . the right side of the head with a .22 to protect the other boys and that after he struck this blow, Mannis took' the grin away .from him. His confession contained a statement that all four of the boys knocked Wampler down, and that Wampler yelled at them not to shoot him. Kágebein said that Teddy Kittler shot Wampler while Wampler was on the grpund, but that he did not know wbo ádministered the bruises arid marks on Wampler’s back and chest.
After Wámpler was shot, the boys started back to DeWitt and they let Teddy Kittler out at his home. The other three boys then drove on to the court square in DeWitt and located Chief of Police James Mason and Officer Wendell Best, who were on patrol. Mannis and West got out of the car and began telling them about a killing south of DeWitt. Mannis was in a very upset condition and fainted on the sidewalk. Mason and Best testified that there was no evidence of physical violence on any of the boys and that the boys did not appear to be drunk. Chief Mason radioed other law enforcement officers and they had Wes.t lead them to the scene described by the boys. When the' officers arrived there they found Wampler’s body in a bruised and mutilated condidon. The only clothes on the body were a pair of boots and a torn piece of ladies’ panties on one leg, with a ladies’ night gown lying under and partially draped over the head. Wampler’s clothing was found lying in a neat bundle on one side of his truck.
The first point urged for reversal is that the introduction of hearsay statements allegedly made in the presence of appellant was a denial of his right to remain silent. On two occasions during trial, the State elicited testimony, over objection, from the police officers to make a showing that statements were made by Kagebein’s companions in his presence while he and the others were in police custody, and that Kagebein remained silent in the face of the statements.
Patrolman James Oswald, one of the State’s witnesses, testified that he was at the hospital with Mannis and Kagebein, that Mannis was unconscious for about an hour, and that after the doctor revived him a little bit and Mannis kept saying he was seeing a dead man, a nurse or someone asked him, “How do you know it was a. dead man?” and that Mannis replied, “Because we killed him.” The State specifically asked patrolman Oswald whether Kagebein denied the statement, and received a negative reply from Oswald.
The second statement was detailed by Arkansas State Trooper Travis Nash who, over objection, with testimony to specifically indicate that Kagebein was in dose enough proximity to hear the remark, said that “one of the boys” was laughing about Joey jumping up and down on the man’s stomach after he was dead and that Kagebein did not deny the statement at the time.
The State’s questioning and the court’s ruling on the defense objections indicate that the testimony of Oswald and Nash was offered as an exception to the hearsay rule, commonly called the “tacit admission rule.” Kagebein was in police custody and in the presence of the police when both statements were made. He had not yet been advised of his rights and could not have intelligently waived them. Under these circumstances, Kagebein’s silence must be assumed to be an assertion of his right against self-incrimination. The introduction of the hearsay statements was a denial of Kagebein’s right to remain silent and constituted prejudicial error.
This rule affecting tacit admissions was stated in Miranda v. Arizona, 384 U.S. 436 (1966):
“In accord with our decision today, it is impermissible to penalize an individual for exercising his Fifth Amendment privilege when he is under police custodial interrogation. ■ The prosecution may not, therefore, use at trial the fact that he stood mute or claimed his privilege in the face of accusation.”
The effect of the Miranda decision upon the tacit admission rule has been recognized by this Court. Gross v. State, 246 Ark. 909, 440 S.W. 2d 543 (1969).
Ever prior to Miranda, our Court rejected this type of testimony under certain circumstances, as indicated by Anderson v. State, 197 Ark. 600, 124 S.W. 2d 216 (1939), where we said:
“ 'One cannot be compelled, when not offering himself as a witness in his own defense, to give evidence in court tending to incriminate himself. Much less should he be compelled to do so out of court. If silence in such case is evidence of guilt, then one charged with crime must, under penalty of himself creating most damaging evidence against himself in support of the charge, enter into a controversy of words with every idle straggler who may choose to accuse him to his face.’ Merriweather v. Commonwealth, 118 Ky. 870, 82 S.W. 592, 4 Ann. Cas. 1039.”
The Missouri Supreme Court in State v. Penn, 413 S.W. 2d 281 (1967), considered this point and said:
“Sheriff Bethel’s relation of what [the third party] said was “purely hearsay.’ State v. Higgins, 321 Mo. 570, 12 S.W. 2d 61. The State apparently offered the testimony on the theory that appellant’s silence when [the third party’s] statements were made in his presence, constituted an admission of his guilt and an exception to the hearsay rule. If this was the prosecuting attorney’s theory, the testimony was inadmissible. ‘The rule of the law in this state is well settled that, while the defendant is in custody or under arrest, statements of a third party, made in his presence, and not denied, are inadmissible at the trial.’ ”
Some of the appellant’s other points for reversal should be mentioned, for they may arise upon a retrial. The appellant urges that the exclusion of evidence of prior homosexual advances of the deceased was error. The appellant’s defense, even though he was being tried as an accessory before-the-fact to a charge of first degree murder, was that the death of Wampler came about not as a part of a pre-arranged plan to rob and kill him, as argued by the State, but out of resistance to his homosexual advances. Appellant does not argue that the evidence of homosexuality justifies homocide but does insist that he should have been permitted to introduce evidence tending to corroborate the claim that homosexual activities preceded the killing. He urges this was important at least to the jury’s consideration of the degree of homicide committed.
The State anticipated this defense and as part of its case in chief presented evidence designed to rebut any suggestion that Wampler might have bargained to trade beer for homosexual favors. Wampler’s cousin, J. A. Wampler, testified that the deceased usually bought beer before going deer hunting. The owner of a dress shop in Stuttgart testified that it would be uncomfortable for a person as large as Wampler to wear the size night gown and panties found with the deceased’s body.
Thus the issue of homosexuality was before the jury, but only through the evidence offered by the State. From voir dire through the defense testimony, all attempts by the defense to determine attitudes of the jury toward homosexuality and to introduce testimony of prior specific acts suggesting that Wampler had been involved in extending improper invitations in the past to boys were rejected by the court.
When character evidence is offered to characterize or explain the acts of the deceased, the general rule is that proof should be confined to the general reputation of the deceased and that inquiry should not be permitted concerning specific acts or conduct. Montague v. State, 213 Ark. 575, 211 S.W. 2d 879 (1948). Even when directed toward a defendant, rather than to the deceased as in this case, evidence of prior similar offenses has been admitted when the charge involved unnatural or unusual sexual acts. Ward v. State, 236 Ark. 878, 370 S.W. 2d 425 (1963); Alford v. State, 223 Ark. 330, 266 S.W. 2d 804 (1954); Roach v. State, 222 Ark. 738, 262 S.W. 2d 647 (1953); Hummel v. State, 210 Ark. 471, 196 S.W. 2d 594 (1946); Hearn v. State, 206 Ark. 206, 174 S.W. 2d 1943). One reason for allowing evidence of prior sexual misconduct when the case involves similar activity is that the extremely high degree of relevancy of such evidence outweighs. the prejudice that may be caused to the defendant. If permitted as an exception when a defendant’s life or liberty is at stake, it would seem that “specific act” evidence of similar prior sexual behavior of a victim, where only reputation is at stake, would be a more compelling exception.
In Evans v. United States, 277 F. 2d 354 (1960), the Court held that where the defense was that killing was necessary to repel a sexual assault and it was clear that the deceased was drunk at the time of killing, it was reversable error to refuse to admit testimony to the effect that the deceased was aggressive when drunk. The defendant and victim were strangers and the proffered testimony was that of the deceased’s wife. The Court said:
“We think that, in the circumstances of this case, almost any evidence showing what kind of man the decedent was would be highly relevant in helping the jury to determine whether appellant’s story of a sexual assault was truthful, and would therefore serve the interests of justice. * * Finally, but equally important, even if it convincingly appeared that the excluded testimony could not induce the jury to acquit, evidence suggesting that he was the aggressor might well have induced the jury to convict appellant for the lesser included offense of manslaughter, instead of second degree murder.”
Some of the specific sexual behavior testimony offered on behalf of Kagebein in chambers was excluded from the jury’s consideration because of remoteness, one incident having occurred three years before and another about four years prior to the trial. Based on this record we believe such testimony should not be excluded on the ground it was too remote. There is no fixed standard for determining remoteness. It is necessary for the court to consider all of the circumstances of the case, including the nature of the act. When the prior sexual misbehavior of an adult is relevant to the crime charged, it seems clear that there is a definite relaxation of the remoteness test. Kerbin v. State, 265 N.E. 2d 22 (Ind., 1970). In Ward v. State, supra, where appellant was charged with fondling a male child, we approved the jury hearing testimony concerning a prior specific incident of similar unnatural sexual activity and, on the issue of remoteness, said:
“Once it is established that a mature person has developed the proclivity to indulge in unnatural sex acts, we are not prepared or unwilling to say it would be erased by the lapse of 4 or 5 years.”
Appellant further contends that it was error for the trial judge to restrict, in the presence of the jury, appellant’s cross examination of the officer who obtained Kagebein’s confession. Pursuant to Act 489 of 1965 (Ark. Stats. 43-2105), the court held a Denno hearing to determine the voluntariness of Kagebein’s confession and found that it was voluntarily given. Then the State, as part of its evidence in chief before the jury, called Trooper Nash and introduced the confession. During cross examination, defense counsel asked Nash if he had a court reporter present to take down Kagebein’s statement. The trial judge interceded and told defense counsel that he would not be permitted to question the witness on the circumstances surrounding the taking of the confession, citing Ark. Stats. 43-2105. After objection by defense counsel and a recess, the court ruled that the witness could be recalled and questioned on the credibility of the confession, but not on its admissibility. Cross examination should not have been limited in this manner.
The purpose of our Denno hearing statute (Ark. Stats. 43-2105) is to prevent a jury from hearing a confession before the court determines that it has been voluntarily given. It is not intended to restrict evidence a jury may hear after a court determination of voluntariness has been made. The defendant still has the constitutional right to have his case heard on the merits by a jury, including the weight and credibility the jury might give to the voluntariness of the confession. Walker v. State, 253 Ark. 676, 488 S.W. 2d 40 (1972); Lego v. Twomey, 404 U.S. 477, 30 L. Ed. 2d 6 618, 99 S. Ct. 619 (1972).
When defense counsel attempted to interrogate Trooper Nash pn the circumstances surrounding his obtaining a confession from the appellant, the trial court commented, in the presence of the jury, that the court had determined in chambers that appellant’s confession was voluntary. The factual determination of voluntariness made by a court in a Denno hearing should not be disclosed to the jury by either the court or by counsel. Wigmore on Evidence, Sec. 861a, n. 35, (Chadbourn Revision, 1970); United States v. Fayette, 388 F. 2d 728 (1968); United States v. Inman, 352 F. 2d 954 (1965).
As a further blueprint for the admissibility of testimony in this trial upon remand, we note that Sheriff Gene Garrison was allowed to testify, over objection, that it was his opinion that Wampler’s body “had been tortured before anything else happened” because “the body will not bruise after death.” Sheriff Garrison was not qualified as a medical expert and the admission of such testimony was improper. Redd v. State, 63 Ark. 457, 40 S.W. 374 (1897).
One of the court’s instructions to the jury told them that voluntary drunkeness was not an excuse for any crime and that the fact that Kagebein may have been drunk at the time of the alleged crime would not excuse him. The implication of the instruction standing alone as it was is that intoxication can have no effect on the crime of first degree murder. If the testimony upon retrial is sufficient to justify such an instruction, and if requested, the appellant would be entitled to an instruction on diminished capacity as affecting specific intent. Stevens v. State, 246 Ark. 1200, 441 S.W. 2d 451 (1969); Pless v. State, 102 Ark. 506 145 S.W. 221 (1912).
The other assignments of error have been considered but need not be discussed because they are not likely to occur again upon retrial.
Reversed and remanded.
Fogleman, J., dissents in part. Harris, C.J., not participating.