
    Campbell v. The State.
    
      Indictment for Larceny.
    
    1. Remark of court in hearing of jury, hat not given as charge. — A witness for the prosecution having testified to the measure and peculiarities of certain footprints found by him at the scene of the alleged larceny, and to their correspondence with foot-prints made by the prisoner ; and the prisoner having been allowed by the court, at the instance of his counsel, to walk over the saw-dust on the floor of the court-room, in front of the jury box, his tracks thereon being measured by his counsel, who observed to the jury, that they differed in certain respects from the tracks described by the witness for the prosecution ; and the prosecuting attorney thereupon objecting to the mode of measurement, and insisting that it Was different from that used by the witness for the prosecution; “ the court remarked, in the hearing of the jury, that there was no evidence that the defendant had walked over saw-dust.” Held, that this remark of the presiding judge, “not being untrue, nor of sufficient importance to influence unduly the minds of an intelligent jury,” was not a reversible error.
    2. Making foot-prints before jury, on question qf identity; what is revisable.— It being a material question in this case, whether certain foot-prints, found at the place where the alleged offense was committed, were made by the prisoner ; and the prisoner having been permitted by the court to exhibit his naked feet to the jury, that they might see whether he could have made the tracks, — it is discretionary with the court below to permit him to make tracks on the ground, within view of the jury, for their information ; and the refusal of this permission is not revisable on error.
    3. Admissions implied from silence. — Evidence of admissions, to be implied from silence, should always be received with great caution, and should be weighed by the jury very carefully, if not distrustingly ; and although the evidence in this case was properly received, a charge instructing the jury that “ the fact that a person who is charged with the commission of a crime says nothing, but remains silent, is a circumstance to which the jury may look as a confession of guilt,” was calculated to mislead them, and is a reversible error.
    Ebom tbe Circuit Court of Wilcox.
    Tried before tbe Hon. JOHN K. Henby.
    Tbe defendant in tbis case was indicted for tbe larceny of “part of an outstanding crop of corn,” wbicb was averred in tbe indictment, in tbe alternative, to be tbe property of J. H. Thompson, J. J. Morse, and W. Colton, or of a partnership composed of those three persons, or of certain persons whose names were to tbe grand jury unknown; and pleaded not guilty to tbe indictment. On tbe trial, as appears from tbe bill of exceptions, tbe following proceedings were bad:
    “ Tbe State introduced one Henry Thompson as a witness, wbo testified, tbat be bad known tbe defendant for several years; tbat be and tbe defendant, during tbe summer of 1875, lived on tbe place named in tbe indictment as belonging to Thompson, Colton and Morse; tbat be discovered, some time during tbe month of August tbat year, tbat some persons bad been taking a few ears of corn, tbe property of tbe persons named as owners in tbe indictment, from a certain field on said place, of about sis acres, wbicb belonged to said Thompson, Morse and Colton; tbat adjoining tbe said six-acre field, and separated only by a ‘ turn row,’ was a small patch of corn wbicb belonged to tbe defendant; tbat there was a road, or path, wbicb led from tbe quarter, where tbe defendant and several other negroes wbo were laborers on tbe place dwelt, through a gate, down to tbe point where said ‘ turn row’ was, and passed on by tbe said six acres of corn; tbat from tbe point where said ‘ turn row ’ led away from said road, be followed tbe bare-footed track of a person, for a short distance down said ‘ turn row,’ where it turned into tbe defendant’s path, passed through a portion of tbe same, and then across the ‘turn row’ into tbe said six-acre piece, and through it back to tbe said road, along wbicb be followed it up, to tbe gate which opened into tbe quarter, after wbicb the track could be traced no further; tbat said track, with all its peculiarities, was plainly visible wherever made in sandy soil; tbat, following tbe route of said tracks, be found at different points that as many as a dozen ears of .corn bad been taken in said six acres; that this was all be discovered bad been taken in tbat part of said six acres, though, in another part of tbe field,_ were tracks other than those of ■defendant, and other corn bad been taken. Tbe witness said, tbat this was on Saturday morning, and, as be bad not been to tbe place since the preceding Thursday evening, be would not undertake to say when tbe corn was taken, but it was between those times, and be would judge it was quite recent; tbat be searched tbe defendant’s premises, and found in bis garden about a peck of shelled corn., exposed to the sun for drying, wbicb tbe defendant said came out of bis own field, wbicb field, the witness said, be examined, and found no corn pulled from it. Tbe witness further said, tbat tbe defendant’s patch and tbe said six-acre field were planted from tbe same seed-corn, but tbat in tbe six-acre patch was older by three weeks than tbe other, and bad been stripped of tbe fodder, and was dry enough to shell, but was not dry enough to grind, wbicb was not the case with tbe corn in tbe defendant’s patch; tbat tbe corn in tbe garden was tbe same kind as tbat which would be produced by said seed; tbat he accused the defendant of taking tbe said corn, and tbe defendant said nothing in reply. The witness further said, that he had known the defendant in the army, and had lived 'with him four years, and knew that said tracks were his tracks; that the defendant had very peculiar feet — he was ‘ slew-footed;’ that his foot was remarkably broad just across the beginning of the big toe; that he measured the said tracks, and found their breadth at the point indicated more than half the length of the foot; that his tracks were not straight, but bent or curved around and outwards; that he afterwards made defendant make a foot-print in the sand, and applied to it the measure of the track where the corn was taken, and it corresponded exactly with the measure in width and length; that he told defendant, ‘he had his own corn, and must not take his,’ to which defendant made no reply at that time; that afterwards, but during the same day while talking about the corn, defendant told him, that if he had listened to him (witness), he would not be in this scrape. The State also proved by one Colton, that defendant said, at a time different from that last above mentioned, that if it had not been for Governor Winston, who was also a hand on the same place, he would not have been in this scrape. This was, in substance, all the evidence offered by the State. In order to test the accuracy of the description of the defendant’s feet, the counsel then offered to show them to the jury, bare of his shoes; which was allowed by the court. The counsel then directed the defendant to walk across the. area in front of the jury box, over the saw-dust on the floor of the court-room; which he did. To one of the tracks thus made in the saw-dust, the counsel took a measure of the broadest part, and applied it lengthwise to the track, to show that said track was nearly three times the length of its breadth. To this mode of measurement the counsel for the State objected, remarking, that it differed from the mode of measurement used by the witness Thompson, who measured the track in the field, and that the testimony of said Thompson was in evidence, as well as the impressions made on the saw-dust. The court then remarked, in the hearing of the jury, and without any objection from the prosecuting attorney, that there was no evidence that defendant had walked over sawdust ; to which remark of the court, thus made, the defendant excepted. The defendant’s counsel, in order to test the accuracy of the description of the defendant’s feet by the witness Thompson, then proposed that the defendant be carried out of the court-house, in the custody of the sheriff, and be allowed to walk' over soil similar to that described, on which the tracks had been traced by the witness Thompson, and that the jury be permitted to be present to inspect the tracks tbus made. The court refused to permit tbis to be done, and tbe defendant excepted. The defendant’s counsel then proposed, that some sandy soil be allowed to be brought up into the court-room, and that the defendant be allowed to walk oyer the same in the presence of the jury, that they might inspect the tracks thus made, and judge for themselves whether they exhibited the peculiarities described by said •witness. The court refused to allow this to be done, and the defendant excepted to the refusal.
    “The court charged the jury, among other things, that the fact that a person who is charged with the commission of-crime says nothing, but remains silent, is a circumstance to which the jury may look, as a confession of guilt; to which portion of the charge the defendant excepted.”
    B. GaxllaRD, for the defendant,
    cited Sims v. The State, 43 Ala. 33; Stephens v. The State, 47 Ala. 708; People v. McWhorter, 4 Barb. 438; Burrill’s Cir. Ev. 267, note c; The State v. Blake, 25 Maine, 350; Johnson v. The State, 14 Geo. 55; 3 Phil. Ev. 310 ; Bennett v. The State, 52 Ala. 370; Moor-house v. Matthews, 2 Comstock, 514; People v. Gonzalez, 35 N. T. 49; I/uke v. GcHhoun County, 52 Ala. 115; Commonzvealth v. Kinney, 12 Mete. 235; Commonwealth v. Walker, 13 Allen, 570; Boh v. The State, 22 Ala. 566; Johnson v. The State, 17 Ala. 618.
    John W. A. Sanfokd, Attorney-General, for the State,
    cited Burrill on Cir. Ev. 482-3; Boscoe’s Or. Ev. 55; Bobinson v. Bleio, 20 Maine, 109.
   MANNING, J. —

After defendant, at the request of his counsel, had been permitted to make tracks in the saw-dust on the court-house floor, that the jury might see whether they were or not of the shape a witness for the State had described those made where the offense was committed, and those of defendant to be, the circuit judge’s remark, “that there was no evidence that defendant had walked over sawdust,” not being untrue, nor of sufficient importance to influence unduly the mind of an intelligent jury, the exception to it is not sustained.

It was at the option of the court to permit or not the same experiment to be made on mellow earth, either in or out of the court-house, within view of the jury, for their information. Defendant had the advantage, if it was any, of having his naked feet exhibited to the jury, that they might see whether or not they were of the shape which the witness described. It is said of this “immediate real evidence,” that it is “of all proof tbe most satisfactory and convincing”; and there was a remarkable case on trial before Sir Matthew Hale, in which a man successfully defended himself from a charge of rape, fully proved against him, by being permitted to show privately to the jury, that he had a frightful rupture, which made it impossible he could be guilty. — 1 Hale’s P. C. 636. In the present case, it could not be very material that the defendant should be permitted to make tracks for exhibition to the jury; for the peculiarity of his ordinary tracks might be caused by some habitual trick of motion in his gait, which he would take pains on such an occasion to avoid. Thei’e was no error in refusing to have such a trial made.

In Bob v. The State (36 Ala. 565-6), the accused, a slave, was indicted for an assault with intent to murder his master; and during a conversation among white persons, in the presence of his master and of the accused, the measure of a track, of the person who had made the assault, was applied to the defendant’s shoes, and found to correspond exactly with them; whereupon some of the persons present exclaimed, that those were the shoes that made the tracks of the guilty man; and Bob made no answer. His silence, under these circumstances, was given in evidence against him. This court humanely decided, that the evidence ought not to have been received at all; because, “ the habitude of thought and feeling, the consciousness of inferiority, and the subordination and discipline belonging to his condition, made it perfectly natural that he should be silent, * * * from an apprehension that a contradiction might be deemed impertinence.” The maxim, qui tacet consentiré videtur, the court held, “never applies, unless an acquiescence in what is said can be presumed.” It was further said, “ Implication from silence must be drawn with great caution.” So, in Fuller v. Dean (31 Ala. 657), this court, quoting from Greenleaf on Evidence, says of this kind of evidence: “It should always be received with caution; and never ought to be received at all, unless the evidence is of direct declarations, of that kind which naturally call for contradiction.” See, also, Johnson v. The State, 17 Ala. 618. The evidence in the cause before us was properly admitted. But the charge of the court upon it was calculated to mislead the jury, concerning the weight it was entitled to. They ought not to have been instructed, “That the fact that the person who is charged with the commission of a crime says nothing, but remains silent, is a circumstance to which the jury may look as a confession of guilt." It is often a circumstance, the significance of which may be wholly misunderstood; and it ought, therefore, always to be questioned very carefully, if not distrustingly, by a jury.

For tbe error in tbis charge, tbe judgment of tbe Circuit Court must be reversed, and tbe cause remanded.  