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UNITED STATES EX REL. SMITH v. BRIERLY

April 14, 1967

UNITED STATES of America ex rel. Frank SMITH
v.
Joseph R. BRIERLY, Superintendent



The opinion of the court was delivered by: LORD, III

 I.

 Relator and two co-conspirators, Young and Collins, were charged with the felony-murder of William Hill, a patron in a tavern which they robbed. In a separate trial at which neither Young nor Collins testified, Smith was found guilty of first degree murder, and on June 28, 1950, he was sentenced to life imprisonment.

 The facts surrounding the alleged murder are not directly relevant to our present inquiry. We need only note that one of the material issues of fact at trial was whether the victim, Hill, died as a result of a blow allegedly inflicted on him by one of the co-conspirators. Soon after the robbery, all three men were arrested and subjected to interrogation by the police. The police elicited oral and written statements from Young and Collins, and relator was confronted with these statements on separate occasions. Interestingly enough, the alleged oral statements of the two men, to which the police officers testified on the stand, contained a clearer implication that Smith had struck the victim with a gun than did the written statements. The officers testified that Young's oral statement was that Smith had hit Hill (N.T. 112), and that Collins orally stated that although "he did not actually see Smith hit Mr. Hill, * * * due to his position * * * he knew that he didn't hit him and he knew that Young didn't hit him, so therefore it must have been Smith that hit him" (N.T. 113-114). *fn1"

 However, the subsequent written statements, which were produced and read at trial over defendant's objection, contained disclaimers of any direct knowledge as to who struck Hill or indeed as to whether the victim was hit by anyone. Asked whether he saw who struck Hill, Young said, "I didn't see him, but it had to be Smith because Collins was at the door." (N.T. 102). Collins' reply was a flat "* * * no, I don't know, my back was to the proceedings that was going on." (N.T. 107).

 Despite these contradictions, Detective McDermott was allowed to testify that after Smith heard a recital by Young of an oral statement he had earlier given to the police, "Smith did not say anything * * *. He just put his head down like that (indicating) and shook his head like that (indicating). * * * He lowered his head and shook his head from side to side. He tightened his lips and just shook his head like that (indicating). At that time I asked him did he want to ask Young anything at that time, and he did not even answer my question at that time." (N.T. 112-113). Relator's trial counsel realized that since the court had refused to sustain his objection, the next best thing would be to have the evidence construed as a firm denial of Young's statement. He asked "that the stenographer note that the head was shaken from side to side with his lips clenched." (N.T. 113). But the trial judge responded otherwise to the evidence he had admitted: "The indication I got was not as a 'no' but as a consternation. I want that noted, too." (N.T. 113).

 Detective McDermott then testified that he next questioned Collins privately, obtained an oral statement implicating Smith in the death blow, and had Collins repeat the substance of the statement to Smith. "At that time [Smith] did not answer, he did not show any signs, he did not say anything." (N.T. 114).

 Another police officer, Detective McGurk, testified that when Smith was confronted with the subsequent written statements of his co-conspirators, the relator again said nothing. (N.T. 94-95). These statements were then read into evidence. Detective Jones later testified that at least at one point, Smith did deny the truth of the statements (N.T. 124-125).

 Thus, there were at least five instances of the use of tacit admissions against relator: the oral statements by Young and Collins, their written statements, and Riggs' statement.

 Smith testified in his defense that he had struck no one in the course of the robbery (N.T. 139). He further insisted that when confronted with the statements of Young and Collins, he denied their veracity:

 
"Well, I shook my head because he said I struck the man, and I shook my head and said 'No, I deny it.'" (N.T. 140). See also N.T. 142, 152-156.

 The following colloquy with the court climaxed relator's testimony:

 
"Q. Did the police ...

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