MANNING, J. —
After defendant, at the request of his counsel, had been permitted to make tracks in the saw-dust on the court-house floor, that the jury might see whether they were or not of the shape a witness for the State had described those made where the offense was committed, and those of defendant to be, the circuit judge’s remark, “that there was no evidence that defendant had walked over sawdust,” not being untrue, nor of sufficient importance to influence unduly the mind of an intelligent jury, the exception to it is not sustained.
2. It was at the option of the court to permit or not the same experiment to be made on mellow earth, either in or out of the court-house, within view of the jury, for their information. Defendant had the advantage, if it was any, of having his naked feet exhibited to the jury, that they might see whether or not they were of the shape which the witness described. It is said of this “immediate real evidence,” that [84]*84it is “of all proof tbe most satisfactory and convincing”; and there was a remarkable case on trial before Sir Matthew Hale, in which a man successfully defended himself from a charge of rape, fully proved against him, by being permitted to show privately to the jury, that he had a frightful rupture, which made it impossible he could be guilty. — 1 Hale’s P. C. 636. In the present case, it could not be very material that the defendant should be permitted to make tracks for exhibition to the jury; for the peculiarity of his ordinary tracks might be caused by some habitual trick of motion in his gait, which he would take pains on such an occasion to avoid. Thei’e was no error in refusing to have such a trial made.
3. In Bob v. The State (36 Ala. 565-6), the accused, a slave, was indicted for an assault with intent to murder his master; and during a conversation among white persons, in the presence of his master and of the accused, the measure of a track, of the person who had made the assault, was applied to the defendant’s shoes, and found to correspond exactly with them; whereupon some of the persons present exclaimed, that those were the shoes that made the tracks of the guilty man; and Bob made no answer. His silence, under these circumstances, was given in evidence against him. This court humanely decided, that the evidence ought not to have been received at all; because, “ the habitude of thought and feeling, the consciousness of inferiority, and the subordination and discipline belonging to his condition, made it perfectly natural that he should be silent, * * * from an apprehension that a contradiction might be deemed impertinence.” The maxim, qui tacet consentiré videtur, the court held, “never applies, unless an acquiescence in what is said can be presumed.” It was further said, “ Implication from silence must be drawn with great caution.” So, in Fuller v. Dean (31 Ala. 657), this court, quoting from Greenleaf on Evidence, says of this kind of evidence: “It should always be received with caution; and never ought to be received at all, unless the evidence is of direct declarations, of that kind which naturally call for contradiction.” See, also, Johnson v. The State, 17 Ala. 618. The evidence in the cause before us was properly admitted. But the charge of the court upon it was calculated to mislead the jury, concerning the weight it was entitled to. They ought not to have been instructed, “That the fact that the person who is charged with the commission of a crime says nothing, but remains silent, is a circumstance to which the jury may look as a confession of guilt." It is often a circumstance, the significance of which may be wholly misunderstood; and it ought, therefore, always to be [85]*85questioned very carefully, if not distrustingly, by a jury.
For tbe error in tbis charge, tbe judgment of tbe Circuit Court must be reversed, and tbe cause remanded.
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