
    BRYSON v. STATE.
    (No. 7875.)
    (Court of Criminal Appeals of Texas.
    Nov. 7, 1923.
    Rehearing Denied Dec. 12, 1923.)
    1. Criminal law <&wkey;393(4) — Footprints voluntarily made by defendant under arrest admissible.
    Where defendant while under arrest voluntarily made footprints for comparison with those leading from the place of crime to his home, testimony of such fact was admissible as against the contention that it amounted to compelling him to give evidence against himself.
    2. Witnesses <&wkey;>382 — Wife introduced by accused to prove alibi properly impeached by contrary declaration.
    Under the rule permitting impeachment of witnesses by proving contrary statements made out of court, the state properly impeached defendant’s wife introduced by him to prove an alibi by showing from other evidence that she had made a contrary declaration.
    other cases see same topic and KEY-NUMBEK in all Key-Numbered Digests and Indexes
    Appeal from District Court, Titus County; R. T. Wilkinson, Judge.
    Lonnie Bryson was convicted of burglary, and he appeals.
    Affirmed.
    Seb. F. Caldwell, of Mt. Pleasant, for appellant.
    Tom Garrard, State’s Atty., of Midland,. and Grover C. Morris, Asst. State’s Atty., of Devine, for the State.
   MORROW, P. J.

The offense is burglary; punishment fixed as confinement in the penitentiary for a period of two years.

The house of Green Low was entered and a middling of bacon stolen therefrom. .This occurred at night, and on the following morning footprints were found about bis premises wbicb led in tbe direction of tbe borne of tbe appellant. Tbe appellant was arrested, and tbe footprints made by bim botb before and after bis arrest were measured by witnesses. According to tbeir testimony, they coincided witb those mentioned above. Appellant also put bis foot in one of tbe tracks made by tbe supposed offender. There was found in tbe loft of appellant’s house half of tbe side of tbe bacon wbicb was identified by the owner as belonging to bim.

Some evidence was introduced on tbe issue of alibi. Appellant’s wife, testifying in his behalf, accounted for the bacon found by stating that it bad been brought by her from the village and put in the loft.

Tbe bills complaining of tbe evidence comparing the footprints found on tbe premises witb those of tbe appellant made before bis arrest or before be was taken in custody reveal no error; neither does tbe bill revealing such comparison after the arrest. This would be true, even if tbe appellant put bis foot in tbe traeks, provided it was a voluntary action. Tbe court, however, withdrew from tbe jury that part of tbe testimony showing that tbe appellant bad put his foot in one of tbe tracks. Tbe admissibility of such testimony has been asserted by this court on many occasions. Some of these cases are listed in Moore v. State, 87 Tex. Cr. R. 574, 226 S. W. 415, in wbicb will also be found a quotation from the case of Walker v. State, 7 Tex. App. 264, 32 Am. Rep. 595.

Appellant’s wife having been introduced by bim as a witness to account for tbe possession of tbe meat wbicb was found in bis bouse, it was competent for tbe state, on cross-examination, to lay a predicate for impeaching her and, upon her denial to impeach her by showing from other testimony that she bad made a declaration contradictory to that given upon the trial. See Branch’s Ann. Tex. P. C. § 174.

A detailed discussion of tbe evidence is not deemed necessary. Tested by tbe rule of circumstantial evidence, the facts are regarded sufficient to support tbe conviction.

Tbe judgment is affirmed.

On Motion for Rehearing.

LATTIMORE, J.

Appellant stresses only tbe proposition that it was error for tbe trial court to permit evidence of tbe fact that be was compelled to place bis feet in tracks found leading from tbe alleged burglarized premises in tbe direction óf bis bouse. Tbe contention is that this was compelling bim to give evidence against himself and was in violation of tbe constitutional guaranties against such procedure. In Walker v. State, 7 Tex. App. 245, 32 Am. Rep. 595, tbe accused, while under arrest, made traeks in tbe sand and ashes, wbicb were then examined and compared witb the tracks .found at tbe place of tbe murders and tbeir similarity testified to. This was upheld. The Walker Case has been cited witb approval in many authorities since. In Nolen v. State, 14 Tex. App. 474, 46 Am. Rep. 247, this court drew tbe distinction between tbe admissibility of tracks made while tbe accused was under arrest and of confessions or other acts of a nature and character such as that tbe truth of same might be affected by tbe fact of arrest. It is there asserted that tbe fact of one being under arrest could not affect tbe length, breadth, or character of bis footprints. In Guerrero v. State, 46 Tex. Cr. R. 445, 80 S. W. 1001, an opinion by Judge Davidson, this court upheld tbe action of the sheriff in having the accused to take off bis shoes, put same in a track, and in testifying that it fit exactly. Many authorities are cited in support of tbe position there taken. In Pitts v. State, 60 Tex. Cr. R. 527, 132 S. W. 801, an opinion by Judge Ramsey, the accused while under arrest bad to place his foot in a track supposed to •have been made by tbe guilty party. This was upheld by this court. Other authorities are cited in section 142 of Mr. Branch’s Annotated P. C. In tbe instant case tbe objection was based on tbe fact of duress and it was not asserted ijbat physical force was used to .cause appellant to place his feet in said tracks.

Tbe motion for rehearing will be overruled.  