The opinion
McMILLIAN, Judge,
dissenting.
I dissent from that portion of the majority opinion which holds that the trial court did not err in allowing two of the guards to testify that the defendant did not volunteer an exculpatory statement indicating that he had acted in self-defense.
The “tacit admission” rule may be stated as follows:
“As a general rule, when a statement tending to incriminate one accused of committing a crime is made in his presence 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 in a criminal prosecution against him, as evidence of his acquiescence in its truth — that is, as a tacit admission of the facts stated — or as indicative of a consciousness of guilt. . ” 29 Am.Jur.2d, Evidence § 638 (1967). See generally 31A C.J.S. Evidence § 295 (1964).
As discussed in State v. Samuel, 521 S.W.2d 374 (Mo.1975), there are three conditions which must be present for the rule to become operative in Missouri. These are: (1) the statement must be made in the presence and hearing of the accused; (2) the statement must be sufficiently direct, as naturally would call for a reply; and (3) the statement must not have been made at a judicial proceeding, or while the accused was in custody or under arrest. Id. at 375 .
Applying these general principles to the present fact situation, it appears as though the “tacit admission” rule is not operative.
*4 The first requirement that must be present to render the rule operative is that there must be a statement made which tended to incriminate one accused of committing a crime. The statement must be one of accusation. There were no such statements made. As the guards entered the cell to stop the altercation which was taking place between defendant Peebles and Richard Brown, the guard made inquiry as to what was happening. The guard, Milton Wright, on direct examination, testified that he asked the defendant what he was doing; however, he could not recall what his exact words were. In addition, the victim, Richard Brown, testified that guard Wright had, upon entering the cell, asked the defendant what he was doing. Thus, the purport of the statement made was at most a general inquiry into what was happening. The majority even concedes this, as the learned author states that “at the time of the guard’s arrival, they had no knowledge of what the circumstances surrounding the altercation were, who had been the aggressor, or whether an offense had actually occurred. Defendant’s statements and non-statements appear to have been volunteered or at most were in response to general information questioning directed at finding out what was going on.” (Emphasis added.) Therefore, as the majority apparently concedes, the statement made to the defendant was not one which was incriminatory or accusatory in nature, at most it was one of general information questioning. Hence, the “tacit admission” rule is inoperative, and testimony that the defendant did not make an exculpatory statement indicating that he had acted in self-defense should have been excluded as an infringement upon the defendant’s Fifth Amendment privilege against self-incrimination.
My second ground for disagreement is as follows. It is a general rule that before an admission by silence can be admitted, physical or emotional impediments to responding must not be present. McCormick on Evidence, § 270 (2nd Ed. 1972); Creager v. Chilson, 453 S.W.2d 941, 943 (Mo.1970). In the Creager case, the defendant was a highly excited and upset, seventeen year old girl, who had just been party to an automobile accident. Although the court admitted the testimony concerning her silence to accusatory statements on other grounds, it was implied that such circumstances where the defendant was emotionally upset at the time the accusatory statements would have warranted the silence. Applying this principle to the present situation, it definitely appears as though the circumstances were such that it would be unreasonable to expect a full and complete statement as to what prompted the altercation. A person, in jail, who allegedly had just been threatened with homosexual rape, and who had just had a physical altercation, would definitely have been in an excited and upset state. It would be unreasonable to expect a full recounting of the events which led to the altercation at the time the fight was stopped and emotions were running high. 1 Had there been a cooling off period, a different result might be presented. However, under these circumstances, a full reply can not be expected, and any silence at this point should not be used against a criminal defendant.
My third ground for disagreement is as follows. The majority argues that the “tacit admission” rule is operative because the defendant was not under custody. The majority opinion claims that, “The arrest and custody involved was not because of the offense about which the defendant was partially silent.” This construction of the term “custody” appears too narrow in light of the serious abuses which may result otherwise.
The New Jersey Supreme Court has recently discussed these possible abuses where it stated:
*5 “Some courts have been rather uncritical about this kind of evidence with the result that the rule has been subjected to considerable abuse in certain jurisdictions. For example, it has become the practice of some police to make wholesale accusations against one who may not even yet be formally an accused, or against one who is in jail. If the unfortunate ‘declarant’ abides by the maxim that ‘silence is golden’ and holds his tongue, he may find police accusations brought into court against him as substantive evidence, as an adoptive admission by silence.” Report, New Jersey Supreme Court, Committee on Evidence, 164 (1963).
In light of such possible abuse of the concept “custody,” and because one’s Fifth Amendment privilege against self-incrimination is involved, I feel that the term “custody” should be construed broadly so as to encompass any situation where physical incarceration is involved. The majority has cited no authority for his definition of “custody,” and I submit that such a narrow construction is not called for under these circumstances.
For the above reasons I would reverse and remand the cause for a new trial.
. “It may be desirable and dramatic for the wrongly accused person to shout: ‘I am innocent !’ but not everybody responds spontaneously to stimuli. . . . There are persons so sensitive and hurt so easily, that they swallow their tongue in the face of overwhelming injustice.” Commonwealth v. Dravecz, 424 Pa. 582 , 227 A.2d 904, 906 (1967).