Cooper v. State

• Decision Date: 21 May 1889
• Citation: 86 Ala. 610,6 So. 110
• Parties: COOPER v. STATE.
• Court: Alabama Supreme Court

6 So. 110

86 Ala. 610

COOPER v. STATE.

Supreme Court of Alabama

May 21, 1889

Appeal from criminal court, Jefferson county; SAMUEL E. GREENE Judge.

Will Cooper appeals from a conviction of burglary.

Rich. H. Fries and J G. Crews, for appellant.

W L. Martin, Atty. Gen., for the State.

STONE C.J.

The prisoner was arrested on a charge of burglary, without a warrant, and 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 hall-way, 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 cannot 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. 1, § 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, 6 S.Ct. 524. In the case of Stokes v. State, 5 Baxt. 619, 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 a 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 this case, said: "Because of this action of the attorney general, [the prosecuting attorney, who had made the offer to the prisoner,] and the assent of 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...