OPINION OF
COKE, C. J.
William H. Comm, a member of the Honolulu police force, was indicted by the grand jury of the first judicial circuit of the Territory of Hawaii on the 30th day of July, 1935, for the murder of his wife Marjorie Corum on July 3, 1935. At the trial, the defendant on October 1, 1935, was found guilty by a jury of the crime charged and was sentenced to he hanged. This writ of error is prosecuted to the verdict and sentence. A great number of witnesses, both expert and nonexpert, were called by both the prosecution and the defense, the transcript of evidence being extremely voluminous. We will summarize briefly some of the more salient facts brought out at the trial.
The defendant and Marjorie Corum were married in Honolulu on July 20, 1934. They were young people of about equal age and after their marriage took up their abode in an apartment at 2163-B Atherton Road, city of Honolulu. Corum was a patrolman-clerk in the Honolulu police department until he resigned on July 8, 1935. Marjorie Corum, the deceased, was a registered nurse employed at the Queen’s Hospital in Honolulu in the capacity of floor supervisor. The hospital was located some two or three
miles from her place of abode. She was on duty at the hospital during the entire day of July 3 and was last seen alive by an acquaintance around 7:45 p.m. of that day at which time she was sitting near the nurses’ home in the hospital grounds. Shortly after 8 p.m. she was heard by a neighbor to enter the apartment shared by herself and husband on Atherton Road. Between 9:35 p.m. and 9:40 p.m. of the same day Corum appeared at the rear door of the home of Mr. and Mrs. Meyer, neighbors who lived but a few feet distant, and requested the use of the telephone, stating at the time that his wife had shot herself. The neighbors immediately phoned to Dr. French who also lived in the vicinity and who received the call about twenty minutes to 10 o’clock. The doctor immediately responded to the call and in company with the defendant and Mr. and Mrs. Meyer went to the Corum residence where Mrs. Corum was found lying on a bed dead from a pistol shot wound. She was dressed in a kimono and light underclothing and was face up crosswise of the bed near the head thereof. Her hands were loosely clasped across her bosom, in her right hand was grasped a white handkerchief and her toes were in contact with the floor beneath the edge of the bed. There was a bullet wound above the third interspace to the left of the sternum. The course of the bullet was directly through the heart. At that time rigor mortis had not yet developed and death apparently had taken place but a short time, perhaps not more than thirty minutes, previously. A 32-caliber automatic pistol was lying on the bed near the left elbow of the deceased. An exploded shell fitting the pistol was found between the foot of the bed and the bedclothing. A large quantity of blood was on the exterior of the body of deceased in the vicinity of the wound and on the bedclothing and furniture close by. One blood spot was some six feet from the head of the deceased. The bullet had penetrated the body rupturing the auricles of
the heart, had passed through the base of the left lung and out through the back at a point slightly to the left of the spine. It was found embedded in the mattress directly below the point of entrance into the body. The course of the bullet indicated that it had been fired vertically and the wound was of such a nature as to cause almost instant death. The wound at the entrance was clean and about the size of the bullet. It was neither jagged nor frayed as would have been the condition had the weapon been fired while in contact with the body. No powder burns or powder residue were found on the skin or flesh at or near the aperture of the wound nor on the brassiere or other clothing adjacent to the wound. The bedding, furniture and fixtures in the room where the body of the deceased was found and the clothing in which she was garbed were all in a natural and undisturbed condition and the body was free from exterior bruises or abrasions, all indicating the absence of any struggle or assault prior to the infliction of the death wound. The defendant admitted the ownership of the death weapon. He testified that about a month prior to the tragedy he had placed the pistol in a chiffonier drawer in the bedroom and that he had subsequently neither possessed nor handled it. No distinguishable fingerprints were found on the exterior of the weapon following the death of Mrs. Corum. There was, however, an impression of the defendant’s right thumb on the magazine (referred to in the testimony as the clip) of the pistol. The magazine contains the loaded cartridges and is carried in the interior of the handle or grip and held in place by a spring clasp. Whether the thumbprint was of recent origin could not be determined.
Major Thrasher, an army officer, was visiting at the Hastings home near the Corum apartment during the whole of the evening of July 3, 1935. He testified at the trial that sometime between twenty minutes of 9 p.m. and
ten minutes after 9 p.m. Ms attention was drawn to a single report or explosion near by which the witness recognized as a pistol shot.
Mr. and Mrs. Finkenbinder, who lived in quarters under the same roof and adjacent to the Corum apartment, testified that between 9 p.m. and 9:15 p.m. they heard what resembled the explosion of a giant firecracker close by. Mr. Finkenbinder' definitely located the Corum apartment as the place from which the sound emanated. Shortly after the body was discovered Dr. Faus, city and county physician, arrived at the scene. He subsequently performed an autopsy and pronounced the death to be suicidal. The defendant was taken to the police station shortly after midnight following the tragedy, was questioned at length by the police authorities, and a paraffin test for powder residue on his hands, as well as on the hands of the deceased, was made by Dr. McVeagh, a ballistic expert. After removing the paraffin cast from the hands of the defendant and the deceased he applied a reagent known as diphenylamine which, it is claimed, will disclose the presence of nitrates or nitrites, if any, upon the paraffin after application to the human skin. The result of these tests was negative as to the hands of the deceased but the test applied to the right hand of the defendant produced flaky nitrates and nitrites similar to gunpowder residue.
The defendant was detained in custody by the police for a brief time following the tragedy and then released. Thereafter, as aforesaid, the grand jury returned an indictment charging him with the murder of his wife, since which time he has been held in prison.' At the trial before the jury the defendant attempted to establish an alibi. He took the witness stand in his own behalf and denied all responsibility for the death of Mrs. Corum, his testimony being that he was not at home at the time of the tragedy and had no knowledge of it until he arrived there and found his wife
lying dead upon the bed in the sleeping room of their apartment. The defendant related in detail his movements during the evening of July 3, 1935. He testified that his wife Marjorie called for him at the home of Sergeant of Police Coxhead on Pensacola Street at about 7 p.m., that they, together, then proceeded by automobile to a sandwich stand at Waikiki, that after partaking of a light meal they drove to their home on Atherton Road, arriving about 8 p.m. They entered the apartment and after remaining about fifteen or twenty minutes after 8 p.m. defendant departed, leaving his wife at home and that he again went to the Coxhead residence; that he did not return to the apart-, ment on Atherton Road nor did he see his wife again until he found her dead body as heretofore described. The defendant called a number of witnesses in support of his alibi and through them he endeavored to corroborate his own testimony to the effect that he was not, and could not have been, present at the time and place his wife received the mortal wound which terminated her life.
The evidence introduced by the government in support of the charge laid in the indictment was wholly circumstantial. No witness was-produced who claimed to have seen the infliction of the death wound or to have been present when the deceased was shot. It was the theory of the prosecution that it was a physical impossibility for Mrs. Corum to have fired the pistol which terminated her life. It was shown that she was a young woman of unblemished character possessing a kind, happy and congenial disposition without known enemies. The prosecution introduced evidence showing that the defendant for some time prior to the death of his wife had carried on a clandestine and illicit relationship with a young unmarried woman by the name of Catherine Lane who lived at the Coxhead home on Pensacola Street. It was shown that Miss Lane had as a result of these relations become pregnant with a child.
That she and Corum had contemplated and planned marriage as soon as Corum was able to procure the termination of his existing marriage status. It was shown by the defendant’s testimony that he had recently urged his wife Marjorie to institute divorce proceedings. These facts, it is claimed by the prosecution, created a motive for the crime. It was shown that within a month of the death of his wife Corum married Catherine Lane. The defendant made numerous contradictory statements especially in relation to his movements on the evening of his wife’s death. The presence of what was claimed to have been residue of burned powder upon the defendant’s right hand within a few hours after the tragedy was testified to by Dr. Mc-Veagh. These and other facts and circumstances damaging to the defendant were recounted by witnesses produced at the trial.
The defendant assigns 42 separate errors alleged by him to have been committed by the trial court. We will first examine the errors relied upon which seem to us deserving of the most serious consideration, namely, assignments of error 20 and 21 which have reference to the admission over the objection by counsel for defendant of the testimony of one Pink L. Murphy and the subsequent denial of defendant’s motion to strike the evidence. As will hereafter appear the disposition of these two assignments will be determinative of this appeal. We reproduce in the margin
that portion of the testimony of Murphy bearing upon the issues of law involved.
It may be stated as a general rule that where a statement is made in the presence and hearing of an accused incriminating in character and such statement is not denied, contradicted or objected to by him both the statement and the fact of his failure to deny are admissible on a criminal trial as evidence of his acquiescence in its truth. This is sometimes referred to as “admission by silence.” The circumstances under which the accusatory statements are made must be not only such as afforded the accused an opportunity to speak but such also as would properly, naturally and reasonably call for some reply. (See 80 A. L. R. 1235, 1236.) There is a wide divergence of judicial opinion as to the effect on admissibility of incriminating statements made in the presence of an accused and not denied by him of the fact that he was under arrest or in custody under a criminal charge at the time the accusation
was made. In some jurisdictions it is held that the mere fact of arrest alone is not sufficient to render the testimony admissible. (See 80 A. L. R. 1259, et seq., for test and citation of decision.) But by the Federal and a large number of state courts of last resort it has been held that the fact of arrest on a criminal charge alone is sufficient to render inadmissible as evidence against the accused his failure to deny incriminating or accusatory statements made in his presence and hearing. These decisions hold that it is the common knowledge and belief of men in general that silence while under arrest is most conducive to the welfare of an accused whether he be guilty or innocent; that anything he may say not only may but will be used against him and that such restraint upon an accused destroys the basis for an inference of acquiescence by silence or failure to controvert. Again we refer to 80 A. L. R. at page 1262 where the decisions of the Federal as well as many state
courts are cited in support of the doctrine, including Colorado, Connecticut, Georgia, Idaho, Indiana, Iowa, Louisiana, Ohio, Oklahoma, Rhode Island, South Carolina, Texas and also the courts of Canada.
“If the accused is held in custody under a criminal charge, mere silence should afford no inference whatever of acquiescence in statements of others made in his presence. He has the undoubted right to keep silence as to the crime with which he is charged, and is not called upon to reply to or contradict such statements. Statements made under such circumstances, it is held by the weight of authority, are not admissible against the prisoner, because they do not even tend to support the hypothesis of acquiescence.” 1 R. C. L. 479, 480. And Wharton says the doctrine of acquiescence by silence is subject to the limitation that the accusations “are not evidence against the accused where he remains silent when they are uttered, at a time when he is in custody or under arrest on a criminal charge, as he has the right to keep silence as to the crime, and is not
called upon to reply to it, nor to contradict such statements.” 2 Wharton’s Crim. Ev. (10th ed.) § 680.
In the case at bar the accused, at the time Murphy talked with him, was not only under indictment charging him with the crime of murder in the first degree but was confined in prison. In
Hauger
v.
United
States, 173 Fed. 54, it is held that the fact that the defendant is under arrest charged with crime renders inadmissible the failure of the accused to deny accusatory statements made in his presence and hearing. The most recent Federal case dealing with the subject which has come to our attention is
McCarthy
v.
United
States, 25 F. (2d) 298. We quote from the decision: “The respondents in these cases were arrested for being in the possession of intoxicating liquor, and for maintaining the place where it was kept for sale. One Close was arrested with them, as a participant in their offences. All three under arrest were taken before the district attorney for examination. An officer who was present testified that at this time, and in the presence of the two respondents, Close had said that the respondents were the ones who carried on this place. Objection was made to this testimony. The court ruled that, as Close’s statement was made in the presence of respondents, the officer’s recital of
it could be received. Doubtless there are cases where testimony as to statements made in the presence of a respondent may be intended as introductory to some affirmative admission or confirmatory statement thereupon made by him, and in such case an objection, as soon as the witness is asked what was said in respondent’s presence, may be premature, for the question may be leading to a confession by respondent; but here there was no testimony that either respondent said anything, and it seemed to be the theory of the prosecutor and of the court that the silence of the respondents under such circumstances would be considered as tending to show their guilt. We infer from the record that the ruling was intended to be to this effect, and that the jury would have so understood it. This was error. Where accusatory statements are made in the presence of a respondent and not denied, the question whether his silence has any incriminating effect depends upon whether he was under any duty or any natural impulse to speak. Sometimes or often, in the earlier stages of the matter, there may be such a duty or impulse; but, after the arrest and during an official examination, while respondent is in custody, it is common knowledge that he has a right to say nothing. Only under peculiar circumstances can there seem to be any duty then to speak. Lacking such circumstances, to draw a derogatory inference from mere silence is to compel the respondent to testify; and the customary formula of warning should be changed, and the respondent should be told, ‘If you say anything, it will be used against you; if you do not say anything, that will be used against you.’ See comments of Shaw, C. J., in Com. v. Kenney, 12 Metc. (53 Mass.) 235, 46 Am. Dec. 672; Com. v. Walker, 13 Allen (Mass.) 570; Com. v. McDermott, 123 Mass. 440, 25 Am. Rep. 120; Porter v. Com. (Ky.) 61 S. W. 16, 17 and citations; State v. Weaver, 57 Iowa, 730, 11 N. W. 675. Also comment by Judge Learned Hand in Di Carlo v. United
States (C.C.A. 2) 6 F. (2d) 364, 366. * * * The judgments must be reversed', and the cases remanded for a new trial.”
It was upon the authority of the decision in
Territory
v.
Buick,
27 Haw. 28, that the trial court permitted the evidence of Murphy to go to the jury and subsequently gave prosecution’s instruction No. 13 B. In the
Buiek
case the accused, while under arrest and in the custody of police officers, was escorted to the hospital where his alleged victim lay conscious but mortally wounded. In the presence of the accused one of the officers asked the injured man the question: “Did this man [indicating the defendant] shoot you?” the reply being, “Yes this man shoot me but he got cap on at that time.” To this accusation the accused made no audible reply. It was held by this court that the testimony of the police officer reciting the accusation was competent evidence to go to the jury upon the theory that “the occasion and the circumstances were such that the defendant was afforded an opportunity*to speak and Ito’s [the deceased’s] accusation was such that naturally and ordinarily would have called forth a reply from an innocent person.” The court then cited and quoted from the decision of the Federal Supreme Court in
Bram
v.
United States,
168 U. S. 532, 558, as supporting the doctrine announced. The
Bram
case involved solely the question of the propriety of receiving in evidence an alleged oral confession made by the defendant in the presence of an. officer. The controversial rule of “admission by silence” of an accused under arrest was not before the court in the
Bram
case and was not approved nor even referred to in the opinion except incidentally, the court saying: “Indeed, the implication of guilt resulting from silence has been considered by some state courts of last resort, in decided cases, to which we have already made reference, as so cogent that they have held that where a person is accused of guilt, under circumstances which call upon him to make denial, the fact of
his silence is competent evidence as tending to establish guilt. Whilst it must not be considered that by referring to these authorities we approve them,” etc.
There is a clear distinction between a free and voluntary oral or written confession of an accused and a case involving the doctrine of “admission by silence.” This distinction was apparently overlooked in the
Buiclc
opinion. An exception to the doctrine rejecting the “admission by silence” rule where the accused is under arrest and charged with crime is recognized by the Federal courts in cases involving the confession of a coconspirator made in the presence of an accused in custody directly implicating the latter in the crime charged. If the criminal act was the result of a conspiracy or the joint act of two or more defendants a confession of one of the defendants made in the presence of and involving his codefendant under such circumstances as would warrant the inference that the latter would naturally hafe contradicted him if he did not assent to their truth and although he may be in custody at the time the declarations are admissible under the “admission by silence” rule. (See
Sparf and Hansen
v.
United States,
156 U. S. 51;
Dickerson
v.
United States,
65 F. [2d] 824.) Under all other circumstances where the accused was in custody under a criminal charge the Federal courts have consistently rejected the doctrine of “admission by silence.” (See
Graham
v.
United States,
15 F. [2d] 740.) But for other reasons, and regardless of whether we approve or reject the doctrine laid down in the
Buick
case, the introduction before the jury of the testimony of Murphy must be held to have been error and clearly prejudicial to the defendant. For even in those jurisdictions where the rule of “admission by silence” of an accused in custody is recognized the statements, to be admissible as evidence, must have been made in the presence of the defendant, incriminating or accusatory in character and the truth of
the facts embodied therein must have been within the knowledge of the accused. If the statements are not inculpatory or if they be such that from lack of knowledge the accused cannot deny them no inference of guilt can flow from the fact that he remains silent.
(Hauger
v.
United States, supra; Vaughan
v.
State,
127 Pac. 264;
People
v.
Koerner,
154 N. Y. 355;
People
v.
Hartwell,
37 Cal. App. 799;
Davis
v.
State,
37 So. 1018;
People
v.
Page,
162 N. Y. 272;
McNutt
v.
State,
163 Ark. 444;
Commonwealth
v.
Kenney,
46 Am. Dec. 672;
Commonwealth
v.
McDermott,
123 Mass. 440.)
Murphy at no time accused the defendant of the crime charged or of any other crime. His language addressed to the prisoner was neither incriminating nor accusatory. Given the most liberal construction of which it is susceptible, it amounted to no more than a statement that he believed that the defendant “was in a very tough spot”; that he believed the government was in possession of sufficient evidence to convict the defendant; that the witness thought the defendant was insane and that half the people on the street were of like mind and that a jury would concur in that belief and that in Murphy’s opinion the defendant should plead insanity. The accused could not have known what Murphy or some of the people on the street may have thought. Neither could he have been aware of the quantum of evidence in the possession of the government or what effect it might have upon a jury. Murphy’s statements were at best mere expressions of his opinion and to the accused they must have appeared wholly conjectural, requiring no response. Had the defendant concurred in all that Murphy said, such concurrence would not have been an admission of guilt nor inconsistent with his claim of innocence. In the conversation between Murphy, Rietow and defendant, the former did most of the talking. At one point when Rietow referred to the powder marks on the accused’s hand
the latter said: “That is all right, I will explain that when the time comes.” Apparently before the defendant had an opportunity to complete his statement Rietow admonished him, “Wait a minute until I get through talking and then you can talk.” Rietow then continued to refer to the powder marks, the accused repeating his former statement, and in the midst of the conversation it was abruptly terminated by the arrival of the jailer. As Murphy and Rietow were leaving the prison Murphy said: “All right, Bill, I don’t think we will be seeing you again. If you want to get any word to us send it to us and we will come down to see you.” The defendant replied: “O. K. I will think it over.” The prosecuting attorney concludes that from the last remark of the defendant it is proper to assume that he was responding to Murphy’s advice theretofore given to the effect that the defendant should plead insanity. The context does not support such an assumption. Murphy at the conclusion of the interview offered to return to see the defendant and suggested that he be notified should the defendant desire to see him. The rejoinder of the defendant “O. K. I will think it over” was a natural response to Murphy’s offer to revisit him. Rietow, although under subpoena by the prosecution, was not called as a witness. In the light of all these circumstances we conclude that the defendant’s failure to refute the statements of Murphy and Rietow cannot afford the basis of an inference of guilt.
The evidence of Murphy, therefore, was incompetent and should have been excluded. The trial judge should have sustained the objection interposed by counsel for the defendant and should have granted his subsequent motion to strike. It is impossible to determine to what extent this incompetent and illegal evidence may have influenced the verdict of the jury and for which reason its introduction was highly prejudicial to defendant. As so aptly said in
McCarthy
v.
United States, supra:
“We cannot say that it
was not the element that turned the scales when the jury decided whether to believe the respondents, who later, as witnesses, denied all connection with the supposed offense.”
As the evidence in question should have been excluded it was also error to give to the jury prosecution’s instruction No. 13 B which is in the following language: “I further instruct you that if you believe beyond a reasonable doubt that certain statements were made to the defendant which incriminated him, and that the defendant failed to controvert, qualify or explain such statements and that he was in a position to do so, and that his conduct or attitude in this respect was voluntary, then you may consider such failure, if any, on the part of the defendant to controvert, qualify or explain such statements in determining whether the defendant admitted the truth of such statements.”
The rule is universal that an instruction to a jury cannot be predicated upon assumed facts upon which there is no proof nor upon incompetent and illegal evidence which should have been excluded.
Having reached the conclusion that the testimony of Murphy was wrongfully admitted and that prosecution’s instruction No. 13 B was erroneously given, all to the serious prejudice of the defendant, it follows that the ends of justice require a new trial of the cause.
We will now briefly discuss some of the other alleged errors specified in the defendant’s assignments. Defendant’s assignments of error 5,15 and 24 involve similar questions, that is to say, the action of the trial court in permitting incompetent evidence against the defendant of a damaging character to go to the jury and subsequently instructing the jury to disregard it. During the trial Detective Eice, a witness for the prosecution, was permitted, over the objection of counsel for the defense, to identify a newspaper published in the State of Tennessee which was found in the bedroom at the time of the discovery of the
deceased’s body, and which contained a headline on the first page, reading: “Murder case still a mystery.” The article had no reference to the defendant or to the crime with which he is charged. It was merely the usual newspaper account of an unsolved murder said to have been committed in the State of Tennessee. It was admitted in evidence but later on was stricken with an admonition to the jury to dismiss it from their minds. Dr. Larsen, a witness for the government, was, over objection, permitted to testify that in his opinion the deceased was not of a suicidal disposition. Subsequently the jury was instructed to disregard Dr. Larsen’s testimony. And similarly, Mabel Slattery, a government witness and a friend of the deceased, in response to a question by the prosecuting attorney, was, over objection by counsel for the defense, permitted to testify that two and a half years prior to the tragedy the deceased had expressed to the witness a fear of firearms. The court later on told the jury to disregard this testimony: It is gravely doubtful whether the subsequent admonitions to disregard the evidence of these several witnesses removed its baneful effect. When illegal testimony has been admitted it is always a serious question as to how far such testimony, though withdrawn in the most explicit and emphatic manner, has detrimentally affected the defendant. In the case at bar the incompetent evidence must have made a strong impression upon the minds of the jury. It is doubtful if that impression was dispelled by the mere instruction to disregard it. It is strongly to be assumed that the poison had already taken effect. “Jurors are but humans, and humans cannot help being influenced more or less in their judgment by impressions once received, try to ignore them as they will.”
State
v.
Allemon,
86 So. 482. (See also
State
v.
Hopkins,
50 Vt. 316;
Montgomery
v.
Commonwealth,
30 S. W. 602;
Chism
v.
State,
12 So. 852;
Brown
v.
State,
100 So. 616.) The ad
mission by a trial judge of incompetent evidence before a jury followed later by an admonition to disregard the evidence is a practice which should not only be discouraged but condemned. In the case at bar the several rulings, first admitting and then striking from the record the illegal and incompetent evidence, if isolated and considered separately, might not constitute reversible error, yet when taken together they support the strongest conviction that the defendant was seriously prejudiced by the action of the trial court. The prosecuting officer insists that the evidence was competent but he argues that even though the court committed error the defendant, by failing at the times the court withdrew the evidence from the jury to move for a mistrial, lost his right to present the question to this court on review. The strict rule of appellate procedure perhaps sustains this position but we would be extremely hesitant to sustain a conviction carrying the death penalty merely because the defendant’s counsel failed to observe a technicality which involved a mere matter of form but nothing of substance.
W. T. O’Reilly
and
M. K. Ashford
(also on the briefs) for plaintiff in error.
J. O. Kelley,
Public Prosecutor, and
O. E. Oassidy,
Assistant Public Prosecutor (also on the briefs), for the Territory.
The action of the trial court in denying defendant’s motion for a new trial is made the subject of defendant’s assignments of error numbers 38, 39 and 40. For reasons heretofore stated the motion should have been granted and the denial thereof was error.
The remaining assignments of error have been considered and are deemed to be without merit. For the reasons stated the judgment and sentence of the lower court are set aside and a new trial of the cause is hereby ordered.