MORROW, Judge.
The appeal is from a judgment condemning the appellant to confinement in the penitentiary for five years for the offense of robbery.
The reliance of the State is wholly upon circumstantial evidence. Mrs. Mary Scott, the injured party, a woman about 73 years of age, testified that about midnight on June 20 a negro man entered her
house, took her by the throat while she way lying on her bed, demanded her money, and put her in fear so that she got her purse and emptied the silver therein, about 90 cents, into the appellant’s hand whereupon he left the premises. She, with her son, who seems to have been mentally deficient, went to the home of a neighbor, where they remained until daylight, and returning to the home in company with others discovered tracks. These tracks, as described by several witnesses, consisted of tracks of a man wearing shoes, near the corner of the house, and barefoot tracks leading toward the house and also coming out of the house. Mrs. Scott said that while working in her garden late in the evening she saw the appellant watching her from the house of McDuffy, about seventy-five yards distant; that an extremely heavy rain had fallen between dark and midnight, at which time it abated and later ceased. A short time before the robbery she had not been able to sleep, and had gotten up and made a light in the house, and was assaulted soon after she lay down again. Her assailant was a negro man and barefooted, and she claimed that while she was lying on her bed and he was choking her, she saw his face plainly during a flash of lightning, and, according to her best judgment, she identified the appellant as her assailant. The appellant is a negro man, and resided some 3 'miles from West Point, where the offense took place, and was at the home of McDuffy on the evening preceding the incident, he claiming to have left McDuffy’s home shortly after dark and walked to his own home, while it was raining. From McDuffy’s testimony it appeared the appellant left his home, according to estimate, at about 9 o’clock. Both appellant and his wife claim that after reaching his home early in the night, he remained until morning.
The prints made by the shoes near the house were described as being made by shoes without heels, one of them apparently turned up at the toe, the right shoe having a worn place in the sole. The barefoot tracks were traced from the home of Mrs. Scott for some distance in the direction of the home of appellant, when they disappeared, and shoe-prints identical with those found near the house of Mrs. Scott were followed to the home of the appellant. This occurred in the morning immediately succeeding the offense; and at the home of the appellant there was found a pair of shoes bearing the peculiarities necessary to make the tracks mentioned, and coinciding with them in size. These shoes were when found wet and muddy, and were on the same day compared by inspection and measurement and by fitting into the tracks which were near the house of Mrs. Scott, and were found to correspond in all respects with the tracks, and to fit in them perfectly. The tracks about the premises were made in sandy ground, and the witnesses gave the opinion that they were made after the rain, and the character of the earth was described as such as to give and retain a good impression of the footprint.
During the forenoon of the day following the night of the offense, officers took charge of the appellant without a warrant, and while in their custody they caused him to go to the premises of Mrs. Scott and in that vicinity, and caused him to remove his shoes and make a barefoot track, and also to put his foot in the barefoot track which was made by the offender. His bare foot fitted in the track, and the track made by him corresponded by measurement with the dimensions of the track supposed to have been made during the night. It . was shown that the shoes which were used belonged to the appellant, and had been worn by him on the night the offense took place. He, in his testimony and in his statement to the officers, disclaimed having been in the vicinity at the time the offense was committed, and claimed that in going from the premises of McDuffy he had taken a route materially different from that which was outlined by the tracks which were traced from the home of Mrs. Scott to that of appellant. An examination of the route which appellant claimed to have taken failed to disclose any tracks. It seems likely, from the evidence, however, that if tracks had been made by him early in the night, they would not have been discernible the next morning by reason of the heavy rain. The clothes worn by appellant on the night mentioned were found the next day, and were wet, including an overcoat which he had borrowed from McDuffy on leaving his house.
We find ourselves unable -to concur in the correctness of the view expressed by the learned counsel for the appellant, that the circumstances are not of sufficient cogency to support' the verdict. His presence at the scene is established without dispute. While the identification by the injured woman is not definite, her description of the offender, so far as she was able to give it, coincides with that of the appellant. His
alibi,
supported by his testimony and that of his wife is discredited by the undisputed fact, in that if he reached his home at 8 or 9 o’clock, the rain falling in torrents for several hours thereafter, before the offense was committed, would have obliterated the tracks on his own premises and leading from the path described by the tracks to his door. The fact that these tracks were definitely discernible is under the evidence a cogent circumstance to refute the theory of- the appellant that, he reached his home before the heavy rain had ceased, and tends strongly to support the theory of the state that he made the tracks about his home after the storm, as he did those at the premises of Mrs. Scott. The peculiarities of the footprints made by the shoes, and the exactness with which they correspond with the tracks made by the shoes worn by the appellant on the occasion, bring the case within a class in which footprints are regarded as a very high character of evidence of identification. See Burrell on Circumstantial Evidence, p. 267-8; Wills on Circumstantial Evidence, p. 237.
The appellant, by various methods, including special charges and motions to withdraw and exclude evidence, sought to have the testi
mony to the effect that a comparison was made of the footprints of the appellant with those about' the scene of the offense excluded. This contention was based upon the proposition that the appellant being under arrest at the time that he made the footprints which were used as comparison j the matter was inhibited by the statute which excludes the acts and declarations of the accused while .under arrest unless warning is previously given. This theory has been passed on by this court several times, and held not within the scope of the statute mentioned. Walker v. State, 7 Texas Crim. App., 264; Pitts v. State, 132 S. W. Rep., 802; Branch’s Crim. Law, sec 353. Appellant testified that he made the tracks which were used for comparison without objection. It is not a case in which the accused was compelled to make the footprints, but one in which it was voluntarily, and inhibited, so far as we are aware, by no rule of evidence. Under-hill on Crim. Evidence, sec. 374, p. 646, from which we quote:
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MORROW, Judge.
The appeal is from a judgment condemning the appellant to confinement in the penitentiary for five years for the offense of robbery.
The reliance of the State is wholly upon circumstantial evidence. Mrs. Mary Scott, the injured party, a woman about 73 years of age, testified that about midnight on June 20 a negro man entered her
house, took her by the throat while she way lying on her bed, demanded her money, and put her in fear so that she got her purse and emptied the silver therein, about 90 cents, into the appellant’s hand whereupon he left the premises. She, with her son, who seems to have been mentally deficient, went to the home of a neighbor, where they remained until daylight, and returning to the home in company with others discovered tracks. These tracks, as described by several witnesses, consisted of tracks of a man wearing shoes, near the corner of the house, and barefoot tracks leading toward the house and also coming out of the house. Mrs. Scott said that while working in her garden late in the evening she saw the appellant watching her from the house of McDuffy, about seventy-five yards distant; that an extremely heavy rain had fallen between dark and midnight, at which time it abated and later ceased. A short time before the robbery she had not been able to sleep, and had gotten up and made a light in the house, and was assaulted soon after she lay down again. Her assailant was a negro man and barefooted, and she claimed that while she was lying on her bed and he was choking her, she saw his face plainly during a flash of lightning, and, according to her best judgment, she identified the appellant as her assailant. The appellant is a negro man, and resided some 3 'miles from West Point, where the offense took place, and was at the home of McDuffy on the evening preceding the incident, he claiming to have left McDuffy’s home shortly after dark and walked to his own home, while it was raining. From McDuffy’s testimony it appeared the appellant left his home, according to estimate, at about 9 o’clock. Both appellant and his wife claim that after reaching his home early in the night, he remained until morning.
The prints made by the shoes near the house were described as being made by shoes without heels, one of them apparently turned up at the toe, the right shoe having a worn place in the sole. The barefoot tracks were traced from the home of Mrs. Scott for some distance in the direction of the home of appellant, when they disappeared, and shoe-prints identical with those found near the house of Mrs. Scott were followed to the home of the appellant. This occurred in the morning immediately succeeding the offense; and at the home of the appellant there was found a pair of shoes bearing the peculiarities necessary to make the tracks mentioned, and coinciding with them in size. These shoes were when found wet and muddy, and were on the same day compared by inspection and measurement and by fitting into the tracks which were near the house of Mrs. Scott, and were found to correspond in all respects with the tracks, and to fit in them perfectly. The tracks about the premises were made in sandy ground, and the witnesses gave the opinion that they were made after the rain, and the character of the earth was described as such as to give and retain a good impression of the footprint.
During the forenoon of the day following the night of the offense, officers took charge of the appellant without a warrant, and while in their custody they caused him to go to the premises of Mrs. Scott and in that vicinity, and caused him to remove his shoes and make a barefoot track, and also to put his foot in the barefoot track which was made by the offender. His bare foot fitted in the track, and the track made by him corresponded by measurement with the dimensions of the track supposed to have been made during the night. It . was shown that the shoes which were used belonged to the appellant, and had been worn by him on the night the offense took place. He, in his testimony and in his statement to the officers, disclaimed having been in the vicinity at the time the offense was committed, and claimed that in going from the premises of McDuffy he had taken a route materially different from that which was outlined by the tracks which were traced from the home of Mrs. Scott to that of appellant. An examination of the route which appellant claimed to have taken failed to disclose any tracks. It seems likely, from the evidence, however, that if tracks had been made by him early in the night, they would not have been discernible the next morning by reason of the heavy rain. The clothes worn by appellant on the night mentioned were found the next day, and were wet, including an overcoat which he had borrowed from McDuffy on leaving his house.
We find ourselves unable -to concur in the correctness of the view expressed by the learned counsel for the appellant, that the circumstances are not of sufficient cogency to support' the verdict. His presence at the scene is established without dispute. While the identification by the injured woman is not definite, her description of the offender, so far as she was able to give it, coincides with that of the appellant. His
alibi,
supported by his testimony and that of his wife is discredited by the undisputed fact, in that if he reached his home at 8 or 9 o’clock, the rain falling in torrents for several hours thereafter, before the offense was committed, would have obliterated the tracks on his own premises and leading from the path described by the tracks to his door. The fact that these tracks were definitely discernible is under the evidence a cogent circumstance to refute the theory of- the appellant that, he reached his home before the heavy rain had ceased, and tends strongly to support the theory of the state that he made the tracks about his home after the storm, as he did those at the premises of Mrs. Scott. The peculiarities of the footprints made by the shoes, and the exactness with which they correspond with the tracks made by the shoes worn by the appellant on the occasion, bring the case within a class in which footprints are regarded as a very high character of evidence of identification. See Burrell on Circumstantial Evidence, p. 267-8; Wills on Circumstantial Evidence, p. 237.
The appellant, by various methods, including special charges and motions to withdraw and exclude evidence, sought to have the testi
mony to the effect that a comparison was made of the footprints of the appellant with those about' the scene of the offense excluded. This contention was based upon the proposition that the appellant being under arrest at the time that he made the footprints which were used as comparison j the matter was inhibited by the statute which excludes the acts and declarations of the accused while .under arrest unless warning is previously given. This theory has been passed on by this court several times, and held not within the scope of the statute mentioned. Walker v. State, 7 Texas Crim. App., 264; Pitts v. State, 132 S. W. Rep., 802; Branch’s Crim. Law, sec 353. Appellant testified that he made the tracks which were used for comparison without objection. It is not a case in which the accused was compelled to make the footprints, but one in which it was voluntarily, and inhibited, so far as we are aware, by no rule of evidence. Under-hill on Crim. Evidence, sec. 374, p. 646, from which we quote:
“Nor can the accused be compelled to place his foot in a shoe-track found in the vicinity of the crime. His refusal to do so can neither be proved against him nor commented on by counsel, while, generally, if he is forcibly compelled to do so, "a witness, who was present at the comparison, cannot testify to the results. But it may always bs proved that the accused voluntarily went to the
locus in quo
and placed his foot in footprints found there and that his foot fitted the footprints perfectly.”
The further point is made that the evidence should have been rejected because at the time the appellant made the footprints which were used for comparison, and at the time his shoes were secured, he was illegally detained, it being contended that the use of evidence obtained under those circumstances was in opposition to the Search and Seizure Clause of the Bill of Rights. The point was passed on in substance in the motion for rehearing in Rippey v. State, in which the point decided was that the State was not precluded from the use against the accused of the fruits of the crime of burglary by the fact that the stolen property was obtained by the officers from the dwelling of the accused without a search warrant, and in the absence of the accused. See Turner v. State, 136 American State Rep., 129; People v. Adams, 63 L. R. A., 406; Jones v. State, 86 Texas Crim. Rep., 214 S. W. Rep., 322. The comparison of the shoes obtained from appellant and the tracks voluntarily made by him being otherwise material were not rendered inadmissible by reason of the fact that he was held in custody of an officer who- had not first obtained a warrant for his arrest.
The appellant testified that in making the footprints which were used for comparison, he did not make them with his barefoot, but he had on his sock. In our opinion, the introduction of proof contradicting this statement was proper.
So far as we are able to discern, the charge of the court on the law of circumstantial evidence was full and accurate, and there was no
error in refusing to supplement it by the special charge on the subject requested by the appellant. To have done so would have been an unnecessary repetition.
The trial judge had no right to qualify the appellant’s bill of exceptions over his objection. We have, therefore, disregarded the explanation attached to the bill. We will say, however, that if considered the explanation fails to modify or change the effect of the bills as prepared by the appellant. The procedure, when the bill of exceptions prepared by the appellant is not acceptable to the trial judge, is pointed out by statute, and unless the appellant consents to the qualification the statute should be followed. See Thomas v. State, 83 Texas Crim. Rep., 325, 204 S. W. Rep., 999, and the authorities therein mentioned.
We discern no departure from the procedure harmful to the appellant, and under the facts proved are not warranted in overturning the verdict of the jury.
The judgment is affirmed.
Affirmed.