Potter v. State
92 Ala. 37
Ala.
1890
Check Treatment
CLOPTON, J.

Appellant was indicted and convicted under section 3786 of the Criminal Code. The jury having returned a verdict of guilty on the first count of the indictment, which charges that the accused, with intent to steal, broke into and entered the dwelling-house of George Arnold, a motion was made in arrest of judgment, and overruled. The motion is based on the insufficiency of the first count, consisting, as is contended, in the- omission to aver that the dwelling-house was a house in which goods, merchandise or other valuable thing, was kept for use, sale or deposit; or that it was specially constructed or made to keep such goods, merchandise, or other thing of value. In Crawford v. State, 44 Ala. 382, it was said, that section 3695 of the Revised Code was clearly divided into two members, separated by the word or and a semicolon — the first making burglary to consist in breaking into and entering, with intent to steal or commit a felony, “a dwelling-house, or any building within the curtilage of a dwelling-house, though not forming a part thereof,” and that these were the. facts to be stated in an indictment under the first member of the section It was also held, that the words, “in which any goods, merchandise or other valuable thing, is kept for use, sale or deposit,” as employed in the statute, were applicable only to the houses mentioned in the second member— “any shop, store, warehouse, or other building.” It appearing that in section 3786 of the present Code, as printed, a comma is used, where a semicolon was used in section 3695 of the Revised Code, it is insisted that this change of punctuation shows, that the legislature intended to abrogate the division of the section into two members, as construed in Crawford v. State, supra, and make the characteristics, as to the contents of the house, and the uses to which it is put or for which it was constructed or made, applicable to all the houses named *40in. the section. Whether section 3786 should be re-punctuated, if need be, and construed as a continuation of the prior division into two distinct members, or whether such change of punctuation should be regarded as controlling the interpetation of the statute, it is unnecessary to decide. The original manuscript of the Code, as adopted by the legislature, governs the printed copy. By reference to the manuscript, we find that the semicolon is retained and used in the same place as in section 3695; so that the change of punctuation, on which the alteration of the construction is founded, was not in fact made. Its retention and use is a legislative adoption of the prior judicial construction placed on the statute. — McPhail v. Gerry, 55 Vt. 174.

A person, accused of crime, can not be compelled to do or say anything that will criminate him, and his failure or refusal to do so can not be proved as a circumstance against him. On this principle, his refusal to make tracks, in order to ascertain their correspondence with tracks found at or near the place of the crime, is not provable against him.— Cooper v. State, 86 Ala. 610. But such is not the character of the evidence objected to. Defendant was not carried to the pilace by force, nor was he compelled or induced by threats or promises to put his feet in the tracks leading to the house. There being evidence,'during the preliminary investigation, that the tracks were defendant’s, he denied that they were his, and asked the sheriff to carry, or have him carried to the p>lace, that he might put his feet in the tracks, the sheriff having said to him, in answer to an inquiry, that it might be, or would be a good point to make; or, that if not his tracks, it might be best for him to do so, one or the other. Defendant was carried at his own request, and voluntarily placed his feet in the tracks. Under these circumstances, it was competent to prove that, when defendant put his foot in the tracks, it seemed to fit. Neither is there error in refusing to charge, at request of defendant, that the fact that he asked, voluntarily, to be carried, that his feet might be compared with the tracks, is a circumstance to which the jury may look in his favor, together with all the other evidence in the'case. The accused can not thus make evidence for himself.. — Jordan v. State, 81 Ala. 20.

The other two charges asked by defendant are argumentative and misleading, or invade the province of the jury. They would probably have understood from the first, that defendant would be entitled to a verdict-, if the interest of the paid detective, and the contradiction of his testimony by other witnesses, generated a reasonable doubt of his guilt, without regard to the other criminating evidence. And the second *41charge, to the effect, that, “if it is reasonable to suppose that the tracks, found near Arnold’s house on the morning after the alleged offense, were made by some one else than the defendant, then this would authorize the jury in finding that said tracks were not made by defendant; and if, after looking at the whole evidence, there is a reasonable doubt as to the defendant’s guilt, then they should acquit,” is not only argumentative, but also virtually a charge upon the sufficiency of the evidence. Charges, based on particular facts, selected and given undue prominence, and authorizing the jury to infer certain conclusions from such facts, may be properly refused. Salm v. State, 89 Ala. 56; Hussey v. State, 86 Ala. 34.

Affirmed.