STATE v. WARNER
12/26/1967
f reasonable caution to believe that a crime is being committed or that it has been committed. Carroll v. United States, 267 U.S. 132, 162, 69 L.Ed. 543, 552, 45 S.Ct. 280, 39 A.L.R. 790 (1925); Henry v. United States, 361 U.S. 98, 102, 80 S.Ct. 168, 4 L.Ed.2d 134 (1959). Less proof is required than to establish guilt and hearsay may be considered on the issue of probable cause. Draper v. United States, 358 U.S. 307, 311-313, 79 S.Ct. 329, 3 L.Ed.2d 327 (1959).
"In dealing with probable cause * * * as the very name implies
we deal with probabilities. These are not technical; they are
the factual and practical considerations of every day life on
which reasonable and prudent men, not legal technicians, act."
Brinegar v. United States, 338 U.S. 160, 175, 69 S.Ct. 1302,
1310, 93 L.Ed. 1879 (1949).
Review of the testimony summarized earlier reveals that there was ample evidence to constitute probable cause for Officer Nelson's arrest of the defendant.
Point No. 28. "The court erred in admitting into evidence hearsay statements made in the presence of defendant in violation of the defendant's constitutional rights against self-incrimination by his silence and in violation of the hearsay rule."
While the defendant was under arrest in Officer Nelson's police cruiser in Fairfield, Officer Grenier of the Waterville Police Department, who was investigating an early radio report that a woman had been hit by a car in Waterville, talked with the defendant. The officer related their conversation saying in part:
[Officer Grenier]. "He said yes, he had just came (sic)
through Waterville. I then asked him if he knew he was involved
in an accident, —
MR. LEVINE: I object your Honor on the same ground.
THE COURT: Overruled.
A. And he put his head down. I then — well, from there we
received word —"
A short time later in his testimony the following occurred:
"THE WITNESS: I then told Mr. Warner that this could be very
serious and he shook his head yes.
MR. LEVINE: I move to strike both the hearsay what the officer
earlier said and the defendant's reaction your Honor on the
grounds of admission by defendant stated before.
THE COURT: Overruled."
The ground for objection was apparently the ground earlier advanced that testimony at the preliminary hearing showed the
We must now consider the effect and significance of the answer "And he put his head down." Defendant argues that as the constitution assures the defendant's right to refuse to make statements relating to the crime of which he is accused, so it also protects him from the prejudice which might result if the jury is told that he remained silent in the face of accusation. We are aware of the considerable body of decisions supporting defendant's position on the law here. Commonwealth v. Dravecz, 424 Pa. 582, 227 A.2d 904 (1967) 29 Am.Jur.2d Sec. 525; Developments in the Law — Confessions; 79 Harv.L.Rev. 938, 1036 (1966). But we do not reach the question of acceptance of that rule of law here nor the issue of whether the officer's words "And he put his head down" do or do not amount to a statement that the defendant remained silent in the face of accusation, for two reasons.
The defendant, if he deemed himself prejudiced by the officer's answer, could have moved to strike that part of the answer and for appropriate instructions to the jury. He chose not to do so. The questioning continued until the officer testified "I then told Mr. Warner that this could be very serious and he shook his head yes."
At this point
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