1. The evidence was sufficient to sustain the verdict.
2. There is no merit in the special grounds for the reasons set out in the second division of the opinion.
DECIDED FEBRUARY 8, 1943. The defendant was convicted of burglary. On the judgment overruling his motion for new trial he assigns error. The brief of evidence shows substantially the following: The place of business of T. Q. Irvin which contained groceries, pecans and other articles, was burglarized. There were missing from the store the following: 2 cartons of Camel cigarettes, 2 cartons of Lucky *Page 807 Strike cigarettes, 1 carton of Chesterfield cigarettes, 12 boxes of Brewton's snuff, 6 cans of tomatoes, 6 cans of Pet milk, 12 jars of mayonnaise, 12 cans of Libby's Vienna sausage, 5 bars of Bridal Bouquet soap, 3 packages of Tom's peanut crackers. The store was entered by breaking out a window, reaching up and extracting the catch pin on top of the window sash. Fresh blood was discovered on a sharp point of the glass, giving the appearance of the burglar having reached his arm through the broken glass to release the catch pin. There was also blood on the side of the house, giving the appearance of some one having made a smear with the hand. It was about twelve or eighteen inches distance from the broken piece of glass with the blood on it to the catch pin.
The officer arrested several parties before arresting the defendant. All were arrested a short time after the burglary was discovered by the owner, who went to his store the morning after the night of the burglary. Immediately after the defendant was arrested he was taken to the scene of the burglary. The sheriff noticed fresh blood on the sleeve of defendant's shirt. The cuts or scratches were about three inches in length, on the right arm of the defendant, were cut sufficiently deep to bleed freely, and were then bleeding. There were several smaller scratches on the other hand or arm. The blood had apparently been smeared with his hand on the wall. The sheriff inquired of defendant as to the wounds and as to the blood on his shirt, and he stated: "It ain't nothing," and kept turning his hand. Upon the defendant pushing his sleeve up the sheriff discovered the fresh wound and blood thereon. The distance from the point of glass on which blood was found to the catch pin was about the same distance as up the defendant's arm where the wounds were located. It had rained before the burglary, and distinct and clear tracks were discovered around and about the entrance into the building. Apparently there were tracks of only one person. About 100 or 200 yards beyond the house, through the woods, in some grass, were found some articles, including canned tomatoes, Pet milk, and one bar of soap of the kind that was missing from the store. The tracks led from the scene of the burglary to the defendant's house, and from there to the place where the articles were found were all the same tracks.
A witness for the State, who was among the first group arrested by the sheriff, testified that on the night of the burglary he observed *Page 808 the defendant going from his house in the direction of the place where the articles were discovered with something in his arms. Several other witnesses for the State testified that the defendant was offering to sell Camel cigarettes at 10 cents per pack, and one of them testified that she observed blood on the defendant's arm.
The defendant introduced no witnesses. The material substance of his statement was as follows: He stated that about nine o'clock he bought a package of cigarettes and offered to sell them to Columbus Johnson who refused them because he didn't smoke, and that he offered to sell them to Susie Cash (a witness for the State). She asked defendant why he wanted the dime, and he replied that he wanted to get in a "skin game." In a few minutes thereafter defendant went home and went to bed. He arose the next morning about five o'clock and went some place. He arrived at the pepper mill about seven o'clock. About nine o'clock he met the sheriff who had put the other parties in jail. "The sheriff said: `Let's go.' I says: `What for?' He says: `Somebody broke in the store. I done got them other boys and put them up there,' and he put handcuffs on me and told me to put my foot down there and it wouldn't fit down there, and he slapped me and took me to jail. He brought another [boy] up there and he hit me seven or eight times, and he told me he was going to take me to Atlanta and put me in the machine and make me tell I done it. . . The way I got my arm scratched, me and my brother Levi was fixing Mama's wash house, and a nail was sticking up and I told Levi to drive the nail down. He says, `I am going to let this nail stay here and hurt somebody,' and I was fooling around it and scratched my arm right there. That is the way my arm got hurt."
After the evidence closed the following colloquy took place: Attorney: "I ask the court to rule out all of this evidence of tracks on the ground that the evidence as brought out by the State's own witnesses shows that this man was forced to be a witness against himself, he was forced to place his foot in these tracks. And I think the courts have ruled in cases where a man is involuntarily made to do some act of that nature that it violates his constitutional privileges to force him to be a witness." The Court: "What part of the testimony is it you refer to?" Attorney: "Mr. Irvin's testimony. I believe Mr. Pope said and this boy too. . . They *Page 809 said they forced him to put his foot in these tracks and hold it still, and that is making him be a witness against himself." The Court: "What do you say, Mr. Solicitor?" Solicitor-general: "If your honor please, my main evidence as to tracks, which of course, is admissible, is that there were tracks leading from the scene of the burglary around the house and straight down to his house, and out from his house into the woods. I understand [the defendant's counsel] doesn't object to that, but he objects to a comparison of the defendant's foot with the tracks. Is that right?" Attorney: "That is right."Solicitor-general: "I don't recall that the sheriff or Mr. Irvin either testified that there was any forcible making of him put his foot in the track. I think it would be best to put him back on the stand and find out exactly what the evidence is." T. Q. Irvin, witness recalled by the State, testified as follows: "We only told him to let it go straight, not be pushing it up and down. I testified that [there] was evidently reluctance on his part to put his foot in straight and make a fair test, that was all. He objected to putting his foot in there, he would slip it [forward] and back and say it wasn't his track. He didn't object to making a comparison other than by slipping his foot backwards and forwards. I didn't force him then to put his foot in the tracks." On cross-examination: "I told him he would have to hold it still. I did not testify I held his legs. He come up and said it was not his, but every time he put it in there he would slip it up and slip it back. Mr. Pope and I did not tell him to put his foot in there to see if it wasn't his. We told him to put his foot in there to see if it wasn't his, and he would slip it up and slip it back. He wouldn't put it right straight in there. He didn't voluntary place his foot in the track. When I told him he would never get it to fit, slipping it up and slipping it back. I didn't get him to, I told him he would have to hold it still if he got it in and made it fit." The Court: "Did you put your hands on him at all?" A. "No, sir." Q. "Did you touch his foot in any way?" A. "No, sir." Q. "Did you place his foot in any imprint that you saw?" A. "No, sir." Attorney: "Your honor, in . . a famous Butts County case in which some negro was accused in [of] breaking in Mr. Compton's house. They brought him in the room and got him to hold up his hands like that [indicating] and the court ruled in that case that that was forcing him to be a witness against himself. . ." *Page 810 The Court: "Of course you can't compel a defendant while he is under arrest to do anything. You can't make him make any movement, gesture, or motion, or make any statement contrary to his own free will. The officers would have had the right, or the party whose store was alleged to have been broken into, to have made a statement to the defendant that those were his tracks, and the defendant, if he wanted to, could have put his foot into the tracks without any compulsion and that would not have been a violation of his constitutional rights of giving evidence against himself. I will instruct the jury: gentlemen, that no act that might be done by any one present, Mr. Irvin or the sheriff, or any other party connected with the investigation of this affair, in which this defendant was told to put his foot in a track for the purpose of comparing that track with his foot, if done under compulsion, would be binding upon him whatsoever, and should be disregarded by the jury. I will leave the evidence, gentlemen of the jury, in the form that it is in, for the jury to determine by sifting the evidence to determine whether or not there was any involuntary act done by the defendant with regards to making a comparison of the tracks in the soil with the defendant's foot. You will not consider anything you find that may have been done by compulsion, if you find there was anything done by the defendant, anything which he did voluntary, you would be authorized to consider that in determining the guilt or innocence of the prisoner."
It will be observed that counsel for the defendant and the solicitor-general disagreed as to the testimony pertaining to the question whether the defendant voluntarily placed his foot in the tracks for comparison, or whether he was illegally forced to do so. When Irvin was recalled on this contention, it will be noticed from the colloquy that the witness denied the use of any force in making the comparison of the shoe and the track. However, the record reveals that previously the same witness, in giving his testimony in the main examination, testified that he held the defendant's foot in the track and also testified that he did not. 1. The motion for new trial consists of the usual general grounds and four special grounds. We have set forth the *Page 811 evidence and a portion of the record somewhat at length and in detail because of the nature of the assignments contained in the special grounds which we will discuss more fully in the course of the opinion. Aside from the issues raised by the special grounds, the evidence, which is substantially set forth hereinbefore, was sufficient to sustain the verdict.
2. Ground 1 of the amended motion assigns error because the court refused to exclude the testimony of Irvin for the reason that the testimony of the witnesses to the effect that the defendant was forced to place his foot in the track showed that he had been compelled to criminate himself in violation of the constitutional guarantee of defendant. It must be conceded by all that the testimony of the witnesses on this issue was vague, evasive, conflicting and unsatisfactory, and had counsel for defendant objected to such testimony at the time it was given by the witness, no doubt the learned trial judge would have then and there settled the question in accordance with the provisions of the law applicable. But no objection to such testimony was registered at the time. After the offering of proof by both sides had ended, counsel made the motion to exclude the testimony. There then arose a disagreement as to what the witness had testified on this point, whereupon the court, without objection from either side, recalled the witness. What he then testified is set forth in the colloquy. It was not definitely then determined that the testimony of the witness previously given conflicted with his testimony given on the recall. The judge, in passing on the motion, very clearly and fully then and there instructed the jury correctly as to the rule of law which should guide them in considering the testimony of this witness. It must be conceded without controversy that if the defendant was compelled by force to put his foot in the track for comparison his constitutional right was invaded. But the whole testimony of the witness made this question doubtful, and we think the court by authority or precedent submitted the question to the jury for determination.
This court held in Holloway v. State, 16 Ga. App. 143 (84 S.E. 590), as follows: "While as a general rule the admissibility of evidence is for the court (and for that reason the use of the term `inadmissible' was inappropriate in the connection in which it was employed by the court), still in a case in which there is conflict and doubt as to whether knowledge of an incubatory fact was *Page 812 obtained by illegal seizure and search, or whether the disclosure of the fact was legal, the trial judge may properly instruct the jury that if they believe, from the evidence, that the disclosure of the existence of the incriminatory fact was compelled without the voluntary consent of the accused, they should disregard such testimony, but that if they are satisfied, from the evidence, that the disclosure was voluntary or accidental, and not obtained without the consent of the accused, they may consider such testimony in arriving at a verdict." Moreover, after a very careful consideration of the evidence in this case we are convinced that the other evidence, aside from that involved in this particular controversy, was sufficient to sustain the verdict. The court did not err, under the facts of this record, in overruling this ground of the motion.
Grounds 2 and 3 assign error because the court failed to charge more fully on the question of the alleged illegal evidence, and because the court omitted to charge sufficiently the provisions of the constitution relative to a person being forced to give testimony against himself. When we take into consideration the statement of the court, at the time the motion to exclude this testimony was overruled, and the entire charge of the court, there is no merit in this contention.
Ground 4 assigns error on the following excerpt from the charge: "It is your duty to take the evidence of the witnesses and the facts and circumstances of the case and the defendant's statement, and apply them to the accusation as made in the indictment charging the crime for which he stands trial and find your verdict therefrom and let your verdict be the truth." It is argued that this excerpt was erroneous when applied to the facts of this case. This assignment of error is based on the contention that the judge should have charged in substance that the jury were the judges of the law and the facts; that the facts they get from the witnesses and the defendant's statement, and the law they get from the court; that they should apply the facts thus ascertained to the law as given in charge by the court and make up their findings. This court and the Supreme Court have many times held that without a written request it is not error for the court to fail to charge this principle. Reddick v. State,11 Ga. App. 150 (74 S.E. 901); Pope v. State, 28 Ga. App. 568 (4) (112 S.E. 169); Brantley v. State, 154 Ga. 80 (6) (113 S.E. 200). A case more nearly in point to the question *Page 813 here presented is Webb v. State, 8 Ga. App. 430 (69 S.E. 601): "Where the court instructs the jury that they are judges of the facts, they need not be instructed in the same connection that they are also judges of the law, if in the general charge as a whole they are correctly instructed as to the law." In the instant case the court correctly instructed the jury as to the law applicable to the facts. We find no merit in the assignment of error in this ground.
The court did not err in overruling the motion for new trial for any reason assigned.
Judgment affirmed. Broyles, C. J., and MacIntyre, J., concur.