
    Cooper v. The State.
    
      Indictment for Burglary.
    
    •1. Refusal of accused to make tracks, as evidence against him. — In a criminal case, the accused can not be compelled to do pr say any thing that may tend to criminate him, and his refusal to do so can not be proved as a circumstance against him ; as, his refusal to make tracks on the carpet in the hall, on the promise of the prosecutor to release him if his tracks did not correspond in every particular with tracks left there by the burglar.
    Erom the Criminal Court of Jefferson.
    Tried before the Hon. S. E. Greene.
    . R. H. Fries, and Jo. G. Crews, for appellant,
    cited Spencer v. State, 20 Ala. 24; Fuller v. Dean, 31 Ala. 657; Campbell v. State, 55 Ala. 80; Weaver v. State, 77 Ala. 26; Jackson v. State, 81 Ala. 23; Thompson v. State, 47 Ala. 37; 30 Ala. 28.
    Wm. L. Martin, Attorney-General, for the State.
    A correspondence between discovered foot-prints and tracks made by the accused, is admissible evidence against him, as tending to identify him. — 1 Bish. Or. Pro., § 1097; Burr. Cir. Ev., 264-8; Cicily v. State, 13 Sm, & Mar, 207. The defendant’s refusal to make tracks on the carpet implied a consciousness of guilt, and was admissible evidence against him, like flight, or any other conduct indicating a consciousness of guilt. — McAdory v. State, 62 Ala. 154; Bowles v. State, 58 Ala. 335; Williams v. State, 81 Ala. 1.
   STONE, C. J.

The prisoner was arrested on a charge of burglary, without a warrant, by the proprietor of the" dwelling alleged to have been burglariously entered. The burglar had been discovered at a late hour of the night, walking within the house, and in his stocking feet. Being pursued, he fled, and made his escape. The night was rainy, and the ground muddy. Escaping, the burglar ran across the hallway, which had a linen covering on the carpet. On this covering were left foot-stains, those made by the left foot being peculiar, and different from those made by the right. This was the testimony of the prosecuting witness. He testified further as follows: “I then told him, if he would take off his shoes, and wet his socks, and make tracks on the linen cloth carpet-cover in the hall, if his tracks, did not correspond in every particular with the tracks made by the burglar, I would release him. This he declined to do.” The defendant asked the court to charge the jury, that “the refusal of the defendant, if proven,, to show a deformed foot to [the person who arrested him] on the night of the arrest, can not be considered as a circumstance against him, and such evidence is excluded from your consideration.” This, charge was refused, and defendant excepted.

Our constitution, Art. I,., sec. 7, declares that the accused “shall not be compelled to give evidence against himself.” The principle of this clause is common to the constitutions of this country. It doubtless had its birth in the abhorrence with which confessions, coerced by inquisitorial torture, were regarded alike in England and America. Courts have differed very widely in its interpretation. Perhaps, its most learned and exhaustive discussion will be found in the able opinion of Mr. Justice Bradley, in Boyd v. U. S., 116 U. S. 616. In the case of Stokes v. State, 5 Baxt. 619 (Tenn.), the precise question we have in hand was presented, with the single exception, that in that case the offer was made to the prisoner, that he should make á track with his bare foot in the presence of the jury. The prisoner declined to do so. The trial court permitted this offer to be made in the presence of the jury, against the objection of the accused; but instructed, the jury not to regard the prisoner’s refusal as evidence against him. The revising court, considering the case, said: “Because of this offer of the Attorney-General [the prosecuting attorney, who had made the offer to the prisoner], and the assent of the court thereto, this cause is reversed and remanded. In the presence of the jury, the prisoner is asked to make evidence against himself. The court should not have permitted the pan of mud to be brought before the jury, and the defendant asked to put his. foot in it. We are satisfied the jury was improperly influenced thereby. And it is no sufficient answer, that the judge afterwards told the jury, that the refusal to put his foot in the mud was not to be taken as evidence against him.” See same case in 30 Amer. Rep. 72.

The principle of the decision from which we have quoted is, that it would have been unlawful to force the witness to give (or make) evidence against himself, and the plan adopted and permitted accomplished the same result by indirect means. Thus regarded and considered, it is difficult to perceive a difference in its hurtful bearing, between making the offer in the court-room before the jury, and proving by a credible witness that it had been unsuccessfully made outside of the court-room. See, on this subject, State v. Jacobs, 5 Jones (Law), 259; Doyne v. State, 63 Ga. 669; Blackwell v. State, 3 Cr. Law Mag. 393; People v. McCoy, 45 How. Pr. (N. Y.) 216.

There are a few authorities which differ from the views expressed above, of which possibly the most noted is State v. Garrett, 71 N. C. 85; s. c., 17 Amer. Rep. 1.

Our own rulings on this and cognate questions may be found in Bowles v. State, 58 Ala. 335; McAdory v. State, 62 Ala. 154; Williams v. State, 81 Ala. 1; Chastang v. State, 83 Ala. 29; Kelly v. State, 72 Ala. 244; Campbell v. State, 55 Ala. 80. The following authorities shed light on confessions, express or implied : 3 Amer. & Eng. Encyc. Law, 492, n. 2; Kelly v. People, 55 N. Y. 565; State v. Pratt, 20 Iowa, 267; Com. v. Kenney, 12 Metc. 235.

There was no error in receiving the prisoner’s answer, as to the number of toes on his feet.

In receiving evidence of the offer made to the prisoner to make tracks with his stockinged foot, and his reply and conduct consequent thereon, the Criminal Court erred,

Beversed and remanded,  