Brief for appellant.

[108 Miss.

UNDERWOOD v. STATE.

[66 South. 285.]

1. CRIMINAL LAW. Privilege of accused. Testimony against self. Where accused, while under arrest, charged with the murder, voluntarily placed his foot with his shoe on, in a footprint found near the place of the homicide, evidence of another witness as to the measurement of his shoe and the tracks near the scene of the homicide, was not objectionable as violating his constitutional guaranty against being compelled to give evidence against himself.

2. CRIMINAL LAW. Identification. Footprints.

Evidence showing the comparison of footprints as a means of identifying a guilty party is admissible. It is competent for a witness to testify that he fitted shoes, found on the accused, in tracks found near the scene of the crime.

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. 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 Atl. 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, affirmed in Adams v. N. Y. 192 U. S. 585, 48 Law Ed. 575.

I respectfully submit, therefore, that the court did not err in this respect.

REED, J., delivered the opinion of the court.

Appellant was convicted on a charge of murder and sentenced to the penitentiary for life. The proof in the case consisted of circumstantial evidence and a confession by appellant. The evidence is sufficient to support the verdict of guilty.

Appellant assigns as error the action of the trial court in permitting witnesses to testify relative to the measurement of shoes worn by appellant with tracks near the scene of the homicide, which measurements and comparisons were made while appellant was under arrest and in custody of an officer. Appellant claims that this was in

violation of the constitutional provision that an accused in a criminal prosecution should not be compelled to give evidence against himself. The evidence shows that the comparison of the footprints was first made by the placing of shoes which belonged to appellant in the tracks. Afterwards appellant placed his foot, wearing one of the shoes, in the track. He was under arrest at the time, but did not make any objection to the comparison, and was not compelled by coercion to do so. He was willing to place his foot in the track. Evidence showing the comparison of footprints as a means of identifying a guilty party is admissible. It is competent for a witness to testify that he has fitted shoes on the accused in tracks found near the scene of the crime. See note in 94 Am. St. Rep. 342, to the case of State v. Height, 117 Iowa, 650, 91 N. W. 935, 59 L. R. A. 437, and cases therein cited. We do not see any error in the comparison of footprints. made in this case. State v. Sexton, 147 Mo. 89, 49 S. W. 452; Myers v. State, 97 Ga. 76, 25 S. E. 252; Thornton v. State, 117 Wis. 338, 93 N. W. 1107, 98 Am. St. Rep. 925. Affirmed.

CHRISTMAN v. CHRISTMAN.

[66 South. 285.]

1. WILLS. Construction. Advancements. Equalizing shares. Executors and administrators. Distribution of estate. Adjusting equities between legatees.

Where a will gave a legacy of eight hundred dollars to each of the two daughters of the testatrix, and after reciting that the son L. had received an advancement of three thousand dollars and was indebted to the testatrix in the sum of fourteen hundred dollars, evidenced by a note, provided that he should pay this note, or so much as was necessary to make his share equal to the share of another son P. it being recited that it was the wish of the

testatrix that L. should receive no more than the advancement, unless his share thus ascertained amounted to more than three thousand dollars; and the residuary estate was given to the two daughters and P., in equal shares, with a provision that if P.'s share amounted to more than three thousand dollars, the excess should be credited on the note, and L. required to pay so much of the note as would make his share and P.'s equal; and a codicil provided that the homestead should be kept and occupied as such, so long as any unmarried child desired to occupy it. It was error to treat the amount due on the note as a part of the residuary estate to be divided between the daughters and P., as this amount was to be used only for the purpose of equalizing the shares of the sons, and where P.'s share with such amount was less than three thousand dollars, he was entitled to the entire amount due on the note, as while the testatrix intended to make the share of the daughters equal and the shares of the sons equal, if this could be done without repayment of the advancement, there was no intention to make the share of the sons and the shares of the daughters equal to each other.

2. SAME.

It was not the intention of the testatrix that L. should pay any interest on the note accruing prior to her death, in the settlement between him and his brother P.

3. SAME.

In arriving at the value of P.'s share of the estate, so that it might be determined whether or not his share equaled that of his brother L., one-third of the value of the homestead was properly included in the value of P.'s share, since the codicil did not eliminate the homestead from calculation but simply postponed the time for partitioning the homestead without the consent of all the devisees.

4. EXECUTORS AND ADMINISTRATORS.

equities between legatees.

Distribution of estate. Adjusting

In making a distribution of the estate under the will, the court should not have summarily ordered payment to a daughter of the testatrix, of the distributive share to which a son was entitled in settlement, of an amount to which the daughter was entitled, as devisee, under the will of her grandmother, which amount had been collected by the son as executor of his grandmother's will and not paid over, but should have left this matter for adjustment in the court in which the administration of the grandmother's estate was pending, or in a suit filed for that purpose.