Underwood v. State

• Decision Date: 09 November 1914
• Citation: 66 So. 285,108 Miss. 34
• Court: Mississippi Supreme Court
• Parties: UNDERWOOD v. STATE

66 So. 285

108 Miss. 34

UNDERWOOD v. STATE

Supreme Court of Mississippi

November 9, 1914

October 1914

APPEAL from the circuit court of Sunflower county. HON. F. E EVERETT, Judge.

Richard Underwood was convicted of murder and appeals.

The facts are fully stated in the opinion of the court.

Affirmed.

S. D Neill, for appellant.

In the case of Stokes v. State, reported in 30 Am. Rep. 72, Stokes was indicted and convicted for the murder of Mrs. Housen. The facts briefly show that Mrs. Housen was taken from her house at night and hanged to a hog pole, near which a track was found in the mud made by a barefoot, the inference being that the man who made this track was a party to the murder, the question of the track made by the prisoner being, of course of grave importance. On the trial of this case, the state brought in a pan of mud and placed it immediately in front of the jury, and then asked the witness if the mud in the pan was about as soft as the mud in the branch where he saw the track; the witness said it was. The attorney-general then called upon the defendant to put his foot in the mud. Upon objection, the court told the defendant that he could put his foot in the mud if he wanted to, but he would not force him to do so, held to be error. The only distinction that I can see in the Stokes case and appellant's case is that appellant was not asked to make the physical demonstration in the presence of the jury that Stokes was asked to make, but when appellant was required to make footprints, in order that those who had observed the vicinity of the crime might make comparison, it was required of him to give testimony against himself and, therefore, an invasion of his constitutional right and error. There are other cases, however, that hold to the contrary.

Geo. H. Ethridge, for appellee.

The point most relied on for reversal of this case by the appellant is that Rich Underwood was requested to place his feet in the tracks after he was placed under arrest, and that this was a means of compelling him to testify against himself, and that such evidence was prejudicial and was not admissible on the trial of the case.

The appellant seems to labor under the impression that the section of the Constitution providing that a person shall not be compelled to be witness against himself in any criminal prosecution, was violated in this respect and he cites one case, to wit: Stokes v. State, 30 Am. Rep. 72.

I respectfully submit that the authorities are all practically the other way, and what few cases hold that such evidence is not admissible, are cases where the accused was compelled, by coercion, to place his foot in the tracks and that the weight of authority is that even where this is a fact, it would not prevent the testimony so obtained from being used on the trial of the offense.

In the case of State v. Jones, 55 S.W. 80, 153 Mo. 457, it was held by the supreme court of Missouri that where the sheriff and a physician had examined the defendant who had been bitten by the person assaulted, or alleged to have been assaulted, and the appearance of such wounds were testified to by the physician and sheriff over the objection of the accused, that no error was committed and that such evidence was permissible. To the same effect is the case of State v. Tettelen, 16 S.W. 743, 754; State v. Miller, 60 A. 202, 71 N. J. Law 527. The precise point here involved had been passed on definitely in the following cases and the evidence has been admitted and the reasoning of the court on those propositions in the case is unanswerable, to wit Morris v. State, 27 So. 336, 125 Ala. 44; Myers v. State, 25 S.E. 252, 97 Ga. 76; State v. Arthur, 105 N.W. 422, 129 Iowa 235; State v. Graham, 41 So. 90, 116 La. 779; State v. Sexton, 48 S.W. 452, 147 Mo. 89; State v. Fuller, 85 Pa. 369, 8 L. R. A. (N. S.) 762; People v. Van Wormer, 67 N.E. 299, 175 N.Y. 188; Thornton v. State, 93 N.W. 1107, 117 Wis. 338; 98 Am. St. Rep. 924; People v. Adams, 176 N.Y. 351, 63 L. R. A. 406, 98 Am. St. Rep. 675, ...