Bryson v. State ( 1923 )

Appellant stresses only the proposition that it was error for the trial court to permit evidence of the fact that he was compelled to place his feet in tracks found leading from the alleged burglarized premises in the direction of his house. The contention is that this was compelling him to give evidence against himself and was in violation of the constitutional guarantees against such procedure. In Walker v. State, 7 Texas Crim. App., 245, the accused, while under arrest, made tracks in the sand and ashes which were then examined and compared with the tracks found at the place of the murder and their similarity testified to. This was upheld. The Walker case has been cited with approval in many authorities since. In Nolen v. State, 14 Texas Crim. App., 402, this court drew the distinction between the admissibility of tracks made while the accused was under arrest and of confessions or other acts of a nature and character such as that the truth of same might be affected by the fact of arrest. It is there asserted that the fact of one being under arrest could not affect the length, breadth or character of his footprints. In Guerrero v. State, 46 Tex.Crim. Rep., an opinion by Judge Davidson, this court upheld the action of the sheriff in having the accused to take off his shoes, put same in a track, and in testifying that it fit exactly. Many authorities are cited in support of the position there taken. In Pitts v. State, 60 Tex. Crim. 527, an opinion by Judge Ramsey, the accused while under arrest was had to place his foot in a track supposed to have been made by the guilty party. This was upheld by this court. Other authorities are cited in Sec. 142 of Mr. Branch's Annotated P.C. In the instant case the objection was based on the fact of duress and it was not asserted that physical force was used to cause appellant to place his feet in said tracks.

The motion for rehearing will be overruled.

Overruled.