Responding to appellant's motion for rehearing and the earnest and forceful argument of his counsel thereon, we have carefully gone over the record in this case.
The point upon which stress is laid is that the act of the appellant in making footprints for comparison with those supposed to have been made by the offender, and in placing his bare foot in tracks found near the scene of the crime, was an infringement of the rule which makes one accused of crime immune from giving evidence against himself. The rule, as applicable to the particular subject in hand, is stated in the original opinion in the quotation from Underhill on Evidence. Soon after this court was organized, the question was presented upon testimony almost identical with that appearing in the record in the case before us. The court said:
"There is but a single bill of exceptions exhibited in the record, and this was saved to the admission in evidence of proof with regard to foot-tracks made by defendant in Justice Joiner's office whilst he was under arrest. Just after the discovery of Maj. Munroe's murder, some parties present commenced examining for any signs or evidence left by the perpetrator at the house and around the premises. Footprints were found in the house, at a window, and in the peach-orchard, which were measured by the witnesses, one of whom was George Grimes. The portion of his testimony which was objected to on the trial was as follows: `I saw the same measure applied *Page 575 to a track in Judge Joiner's office at Bremond. Joiner made the defendant make his track in the ashes and in sand in his office, where a stove had been. The impression made was plain, and it was about the same as tracks made in Munroe's house. The measure was applied to the footprints in Joiner's officer, and it was the same in every particular — fitted it exactly.'
"It is contended that the evidence was incompetent and inadmissible, because it was evidence which defendant was compelled to make and give against himself, in contravention of the tenth section of the Bill of Rights, art. 1, of the Constitution, which declares that one accused of crime shall not be compelled to give evidence against himself.
"This identical question was presented in the case of The State v. Graham, 74 N.C. 646. RODMAN, J., delivering the opinion of the court, says: `The object of all evidence is to elicit the truth. Confessions which are not voluntary, but are made either under the fear of punishment if they are not made, or in the hope of escaping punishment if they are made, are not received as evidence, because experience shows that they are liable to be influenced by those motives, and cannot be relied on as guides to the truth. But this objection will not apply to evidence of the sort before us. No fears or hopes of the prisoner could produce the resemblance of his track found in the cornfield. The resemblance was a fact calculated to aid the jury, and fit for their consideration.' After citing Best on Evidence, sec. 183, and other authorities, the learned judge proceeds to say further: `If an officer who arrests one charged with an offense has no right to make the prisoner show the contents of his pocket, how could the broken knife or the fragment of paper corresponding with the wadding have been found? If, when a prisoner is arrested for passing counterfeit money, the contents of his pockets are secured from search, how can it ever appear whether or not he has on his person a large number of similar bills, which, if proved, is certainly evidence of scienter? If an officer sees a pistol projecting from the pocket of a prisoner arrested for a fresh murder, may he not take out the pistol against the prisoner's consent, to see whether it appears to have been recently discharged? Suppose it be a question as to the identity of the prisoner, whether a person whom a witness says he saw commit a murder, and the prisoner appears in court with a veil or a mask over his face, may not the court order its removal in order that the witness may say whether he was the person whom he saw commit the crime?' . . . The conclusion reached is thus summoned up: `We agree in the opinion that when the prisoner, upon being required by the officer to put his foot in the track, did so, the officer might properly testify as to the result of the comparison thus made. It is unnecessary to say whether or not the officer might have compelled the prisoner to have put his foot in the tracks, if he had persisted in not doing so.' See this case of The State v. Graham, supra, also reported *Page 576 in full in 1 Am. Cr. Rep. (Hawley), 182." Walker v. State, 7 Texas Crim. App., 264.
Upon facts in no sense distinguishable from those surrounding the appellant, this court has held similar evidence competent, and on many occasions expressly approved the case from which we have quoted. Thompson v. State, 45 Tex.Crim. Rep.; Pitts v. State, 60 Tex.Crim. Rep.; Myers v. State, 14 Texas Crim. App., 48; Guerrero v. State, 46 Tex.Crim. Rep.. The rule approved in Walker's case, supra, has been expressly followed in other jurisdictions. State v. Graham, 116 La. 782; Thornton v. State, 117 Wis. 345, 98 Amer. State Rep., 924. The rule stated and applied in this case finds sanction in the text and in the cases in Wharton's Crim. Evidence, vol. 2, p. 1798.
Finding ourselves unable to concur in the views of appellant, and being of the opinion that the decision for which he contends is at variance with the rules of evidence, illustrated by numerous precedents in our own and other jurisdictions, we must decline to grant the motion for rehearing. It is accordingly overruled.
Overruled.