
    No. 625
    GRUBE v. STATE
    No. 19820.
    Supreme Court
    On motion to certify.
    Dock. May 15, 1926.
    480. EVIDENCE — Where a sheriff is assaulted on a dark night, it being impossible to discern the identity of a person, and the sheriff injured the assaulting party by shooting him in the leg, may said sheriff testify concerning an inspection of a scar on the suspect’s leg in an effort to effect a conviction for the assault?
    Attorneys — T. J. McCormick, Springfield, for Grube; W. F. Bevitt, Springfield, for State.
   It appears that the sheriff of Clark County discovered an alleged jug of whiskey on a farm belonging to Grube and that the sheriff concealed himself at night near by and accosted a certain individual who picked up the jug. Thereupon the sheriff was struck by the individual with the jug. The sheriff then opened fire and claims to have shot this party in the leg.

Grube was subsequently arrested on suspicion and the sheriff examined his leg and found a scar.

No expert testimony was submitted and over the objection of Grube the sheriff was permitted to testify concerning to the scar on Grube’s leg, the sheriff admitting that it was too dark to recognize his assailant.

The trial court refused to permit Grube to offer demonstrations and expert testimony.

Grube in the Supreme Court contends:

1. _ That the court erred in permitting the sheriff to testify concerning the scar because of the established rule that such statements are not admissible unless they are part of the res gestae or are dying declarations made with a consciousness of a pending death with no hope of recovery.

_ 2. That it is a violation of constitutional rights to compel the party to submit to a physical examination because such will compel him in a criminal case to be a witness himself.  