Magee v. State

• Decision Date: 25 May 1908
• Citation: 92 Miss. 865,46 So. 529
• Court: Mississippi Supreme Court
• Parties: WILLIAM MAGEE v. STATE OF MISSISSIPPI

46 So. 529

92 Miss. 865

WILLIAM MAGEE v. STATE OF MISSISSIPPI

Supreme Court of Mississippi

May 25, 1908

March 1908

FROM the circuit court of Jefferson county, HON. MOYSE.H WILKINSON, Judge.

Magee appellant, was indicted for an assault and battery with intent to kill and murder one Lofton, was tried, convicted sentenced to the penitentiary for ten years, and appealed to the supreme court.

The evidence showed that Lofton, the party assaulted, awakened by some one stealthily moving in his sleeping apartment, arose, and, by the light of a lamp, discovered a negro man in the room.The negro evaded Lofton's effort to seize him, and escaped.As he leaped through a window onto a gallery he fired a pistol at Lofton but missed him.Tracks, made by bare feet, were found upon the gallery and on the ground without the house.The appellant, Magee, a negro, was arrested shortly afterwards, brought by the sheriff to Lofton's premises where the assault had been committed, and compelled while under arrest, by the sheriff, to take off his shoe and put his bare foot into one of the tracks.On appellant's trial in the circuit court, testimony was introduced by the state, over defendant's objection, to show that this compulsory comparison between appellant's foot and the track had been made and that the foot fitted the track exactly in size and shape.In addition, Lofton testified to the identity of appellant, as the party who had assaulted and shot at him, The appellant's defense was an alibi.

Judgment affirmed.

Martin & Frierson, for appellant.

It is a fundamental right, guaranteed by the United States constitution and set forth in the constitutions of the majority of our states, that no person shall be compelled to be a witness against himself in any criminal case.U. S. Constitution,5th Amendment;State Constitution of 1890, sec. 26;Code 1906, § 1908.

The case of Jordan v. State,32 Miss. 382, is authoritative of our contention here.In that case, Jordan, a slave, was convicted of the murder of another slave, Aaron by name.Two persons forced Jordan to talk by threatening to shoot him if he did not do so.Under the influence of these threats, Jordan told when and where he lost a knife, and described the knife.The circuit court allowned testimony as to this to go before the jury, upon the district attorney's statement to the court that he expected to show by other testimony that upon search a knife of the description was found near the place designated.In commenting upon this point, FISHER, J., said: "If there is a principle which may be regarded as settled in the criminal jurisprudence of this country, it is that the accused has the right, under any and all circumstances, to maintain his silence in regard to the commission of the crime charged against him; and the rule which protects him against a full confession of guilt, if it appeared that the confession had been extorted by violence, also protects him against testimony which could only be discovered or made available through the instrumentality of such confession, for otherwise the rule could always be successfully evaded.That which protects a man against the principal thing must, of course, protect him against its incidents."

In the case of Blackwell v. State,44 Am. Rep., 718, the Georgia court said: "On trial for murder, the extent of amputation of one of the defendant's legs being a material question, it was error to compel the defendant to exhibit his leg to the jury."See alsoState v. Jacobs, 50 N.C. 259.

In Stokes v. State,30 Am. Rep., 72, the court stated that, "On an accusation for murder, it being claimed that certain footprints were those of the defendant, the prosecuting attorney brought a pan of mud into the court room, and placed it in front of the jury, and, after proving that the mud in the pan was about as soft as the mud where the tracks had been discovered, called on the defendant to put his foot in the mud in the pan.On objection by counsel for defendant, the court instructed the defend. ant that compliance was optional with him.The defendant refused, and the court instructed the jury that the defendant's refusal was not to be taken against him.The defendant was convicted, and the appellate court held that he was entitled to a new trial."See alsoState v. Graham,21 Am. Rep., 493;Hawkins v. State(Fla.),10 So. 822;andDay v. State, 63 Ga. 667.

The rule is well settled that a witness may refuse to answer a question, the answer to which would tend to incriminate him.Why should he not have the right to refuse to do a thing which would tend to incriminate him?If actions speak louder than words, why rule in favor of the word and not in favor of the act?

To allow evidence of appellant's compulsory act in putting his foot in the foot-print, to go before the jury is practically allowing the state to profit by the wrongful act of its officers.Ammons v. State,80 Miss. 992, 39 So. 9;State v. Simmons,109 Mo. 118;Ward v. State,2 Mo. 120;Higden v. Heard,14 Ga. 255;People v. Mather,21 Am. Dec,, 122;Counselman v. Hitchcock, 142 U.S. 547.

R. V. Fletcher, attorney-general, for appellee.

Conceding for the sake of discussion, that the appellant's act in putting his bare foot in the track was under compulsion, the great weight of authority is in favor of the competency of evidence as to this for assistance in identity.This proposition is discussed in 3 Wigmore on Evidence, § 2265. Prof. Wigmore, in this section of his great work, discusses the matter of the court's compelling a person to expose any part of his body or subject himself to measurement, and the learned author utterly repudiates and rejects the doctrine that so doing would be a violation of the constitutional privilege against self incrimination.

I call especial attention to the case, cited by Wigmore, of State v. Graham,74 N.C. 648, which is exactly in point, and which held it to be competent to admit evidence of a compulsory placing of accused's foot in a track.

In this day and time, when the Bertillon system of measurement is the usual method of identifying criminals, it is futile to hold that a person charged with crime cannot be forced to submit himself to such measurement for the purpose of a more complete identification.I am, of course, aware that some courts have held to the contrary, but it is believed that their rollings upon the subject are not based upon sound principles nor in accord with any healthy development of the law.Analagous to this in principle, is the common instance of the defendant being forced to disclose the place where stolen goods have been secreted or the body of a murdered person hidden, and this court has held that, while the utterances of a defendant made under compulsion are incompetent, yet witnesses may testify as to what was discovered at the place indicated by the defendant, even though such disclosures were made under compulsion.See the well considered cases of Garrard v. State,50 Miss. 151;Belote v. State,36 Miss. 96.And this point was clearly before the court in the recently decided case of Wallace v. State (unreported), a case wherein the judgment was affirmed by the court although a death sentence was involved.

OPINION

WHITFIELD, C. J.

The defendant in this case was compelled to put his foot in a track found near the place where the crime is alleged to have been committed, for the purpose of identifying him, and this is the sole question having any merit in the cause.This precise question has never yet been adjudicated by this court.Amendment 5 to the Constitution ef the United States provides as follows on this point: "Nor shall a defendant be compelled in any criminal case to be a witness against himself."Section 26 of the Constitution of 1890 of Mississippi provides that in any criminal prosecution, "a defendant shall not be compelled to give evidence against himself."The case of Jordan v. State,32 Miss. 382, was not a decision on this precise point.That case held that this provision excluded confessions extorted by violence.That is a very different proposition.

Learned counsel for the appellant cite a few cases from Georgia Tennessee, and North Carolina in support of their view, amongst others the case of State v. Jacobs,50 N.C. 259, decided in 1858; but that case was practically overruled in State v. Graham,74 N.C. 646, 21 Am. Rep., 493, decided in 1876, wherein the court said: "The object of all evidence is to elicit the truth.Confessions which are not voluntary, but are made either under the fear of punishment if they are not made or in the hope of escaping punishment if they are made, are not received as evidence, because experience shows that they are liable to be influenced by those motives, and cannot be relied on as guides to the truth.But this objection will not apply to evidence of the sort before us.No fears or hopes of the prisoner could produce the resemblance of his track to that found in the cornfield.This resemblance was a fact calculated to aid the jury and fit for their consideration.Evidence of this sort is called by the civilians 'real evidence,' is always admissible, and is of greater or less value according to the circumstances.In Best on Evidence, § 183, the following instances of its value are given: 'In a case of burglary, where the thief gained admittance into the house by opening the window with a penknife, which was broken in the attempt and a part of the blade left sticking in the window frame, a broken knife, the fragment of which corresponded with that in the frame, was found in the pocket of the prisoner.So, where a man was found killed by a pistol, the wadding in the wound consisted of a part of a printed paper, the corresponding part of which was found in...