State v. Graham

• Court: North Carolina Supreme Court
• Writing for the Court: RODMAN
• Citation: State v. Graham, 21 Am. Rep. 493, 74 N.C. 646 (N.C. 1876)
• Decision Date: 31 January 1876
• Parties: STATE v. GUS GRAHAM.

21 Am.Rep. 493

74 N.C. 646

STATE

v.GUS GRAHAM.

Supreme Court of North Carolina.

January Term, 1876.

A prisoner under arrest for stealing growing corn from a certain field, may be compelled by the officer having him in charge, to put his boot or shoe in a track found in the field, for the purpose of comparison; and the result of that comparison is admissible evidence on the trial of the prisoner for the offence.

( State v. Jacobs, 5 Jones 257, cited and approved.)

INDICTMENT for ??a ceny, tried before Buxton, J., and a jury, at Fall Term, 1875, of ANSON Superior Court.

The defendant was charged with the larceny of a growing crop.

It was in evidence that in the latter part of the week before Fall Term, 1875, of Anson Superior Court, the prosecutor, Lewis Ricketts, missed a quantity of corn from his field, having been pulled from the stalks while standing. The defendant was in the employment of the prosecutor. Fresh tracks, apparently of a single person, were discovered in the field, leading from stalk to stalk, where the corn was missing. There was a fence between that portion of the prosecutor's premises where the defendant lived, and the place where the corn was missing. The tracks both going and coming lead to this fence. On Monday of said term the defendant was arrested and the officer found under his bed about one and a half bushels of corn, apparently new corn. The officer carried the defendant to the prosecutor's field where the tracks were discovered.

The State offered to prove by the officer that he compelled the defendant to put his foot in the track and that it corresponded therewith.

To this evidence, the counsel for the defendant objected, because the prisoner was then under arrest and ought not to have been compelled to do anything calculated to criminate himself, the proposed evidence, partaking of the nature of a forced confession, ought to be excluded.

The objection was overruled and the defendant excepted.

There was a verdict of guilty and judgment accordingly. The defendant appealed.

Busbee & Busbee, for defendant .

Attorney General Hargrove, for the State .

RODMAN, J.

The first exception is, because the Judge permitted the officer who had the prisoner in custody to testify, that he made the prisoner put his foot in the tracks found in the prosecutor's field, and that his foot fitted the tracks perfectly. It is argued that making the prisoner put his foot in the track was procuring evidence by duress, and the case of State v. Jacobs?? 5 Jones, 259, is cited.

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 tract to that found in the corn field. 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, sec. 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 pen knife, 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 the pocket of the prisoner. In another case of murder, a patch on one knee of the prisoner's breeches corresponded with an impression found on the soil, close to the place where the murdered body lay. In a case of robbery, the prosecutor when attacked...