Hendrix v. State

• Decision Date: 01 July 1940
• Docket Number: 4169
• Citation: 141 S.W.2d 852,200 Ark. 973
• Parties: HENDRIX v. STATE
• Court: Arkansas Supreme Court

141 S.W.2d 852

200 Ark. 973

HENDRIX v. STATE

4169

Supreme Court of Arkansas

July 1, 1940

Appeal from Howard Circuit Court; Minor W. Milwee, Judge; affirmed.

Judgment affirmed.

Jas. S. McConnell, for appellant.

Jack Holt, Attorney General, and Jno. P Streepey, Assistant Attorney General, for appellee.

OPINION

SMITH J.

Appellant was given a life sentence in the penitentiary for murdering Inez Hendrix, and this appeal is from that judgment.

For the reversal of this judgment it is insisted that incompetent testimony was admitted, including an alleged confession; that the competent testimony is insufficient to sustain the verdict, and that it was error to permit the sheriff to have charge of the jury, inasmuch as he was one of the principal witnesses for the state.

Deceased was the wife of Houston Hendrix, who left his home immediately after eating breakfast on the morning of February 15th to sow oats for a man who had employed him for that purpose. He returned home about 5 o'clock in the afternoon, and saw his mother taking home with her his two children, who were twins about 13 months old. His mother had been told that the children were at their home alone, without heat in the house and were nearly frozen. Houston hurried home and began calling his neighbors when he failed to find his wife. He discovered that the well bucket and the pulley with which it was lowered and raised were missing, and this confirmed the belief that his wife was in the well. A hook was fashioned and the body of Inez was brought to the surface. A neighbor was lowered into the well, and the body was taken out of it and the sheriff was immediately notified. Appellant and a boy named Bernice Hendrix, who was 16 years old, were suspected, and both were arrested. Both appellant and Bernice had been hauling pine stumps for fuel in separate wagons from a nearby tract of cut- over land during that day. The tracks of both wagons were observed, and human tracks were discovered leading from the tracks of appellant's wagon both to and from the home of Inez. The stride of the tracks leading from the home were much longer than those leading to it, indicating that the person who made them was running as he returned to the wagon tracks.

The sheriff took appellant to the wagon tracks, and told him to remove his shoes, which he did, and the shoes fitted into the shoe tracks. Appellant testified that the shoe tracks did not fit his shoe until the shoe was pressed down into the earth, which was soft from a recent rain. This was one of the disputed questions of fact in the case.

The sheriff made a plaster east of the tracks, into which the shoe was placed in the presence of the jury. The admission of this testimony is one of the errors assigned for the reversal of the judgment.

The admissibility of such testimony is the subject of an extended note to the case of Biggs v. State of Indiana, 201 Ind. 200, 167 N.E. 129, 64 A. L. R. 1085. A headnote to that case is: "The taking of his shoes from one arrested for stealing corn, to show the tracks made by them were like tracks near the crib from which the corn was stolen, does not violate a constitutional provision that one shall not be compelled in a criminal case to bear witness against himself."

It is uniformly held that it is admissible to show that the tracks in question resembled those made by the accused; but there is a contrariety of views as to whether the accused may be compelled to remove his shoes for the purpose of comparison.

Professor Wigmore says (§ 2265, Vol. 8, Wigmore on Evidence): "From the general principle (ante, § 2263) it results that an inspection of the bodily features by the tribunal or by witnesses cannot violate the privilege, because it does not call upon the accused as a witness, i. e., upon his testimonial responsibility. That he may in such cases be required sometimes to exercise muscular action--as when he is required to take off his shoes or roll up his sleeves--is immaterial, unless all bodily action were synonymous with testimonial utterance; for, as already observed, not compulsion alone is the component idea of the privilege, but testimonial compulsion."

Cases cited in the notes to the text quoted indicate, as the learned author observes, that each state court "may have its own special attitude toward the whole principle.

The same conflict exists on this question as is found in cases relating to the introduction of evidence obtained by illegal search and seizure, many of which are summarized by the annotator in the note to the case of Biggs v. State of Indiana, supra, who states that "The weight of authority supports the proposition that the admission in evidence of shoes taken forcibly from the person of one under arrest for commission of a crime, or of the result of a comparison of the tracks with the shoes so obtained, for the purpose of connecting him with the person who made the tracks, found near the scene of the crime, does not violate the rule against self-incrimination."

It is not contended that appellant was forced to remove his shoes, or that he did so under protest. But if this claim were made, the jury might well have found to the contrary, as the testimony on the part of the state is that appellant removed his shoe without protest.

In our own...