Richardson v. State
41 So. 82
Ala.
1906
Check Treatment
WEAKLY, C. J.

The several questions propounded to the witness Townsend as to his knowledge of the time and place where and when the deceased was said to have been killed were within the rule declared in Stoball v. State, 116 Ala. 454, 459, 23 South. 162, and were properly allowed. They were merely introductory to other questions necessary to elicit facts that were legal evidence. Frazier v. State, 116 Ala. 442, 23 South. 134 ; Green v. State, 96 Ala. 29, 11 South. 478.

There was testimony addressed to the court that the confession of the defendant was voluntarily made, and that the officer to whom it was made offered no reward or inducement and made no threat to procure the defendant to make the inculpatory statement. Under these circumstances we caiinot declare that the trial court erred in holding the confession to be competent and in allowing it to go to the jury, although another person was present at the time of the confession and there was an ab-mice of evidence as to any act done by such person to wrongfully induce a statement by the defendant or that such person did nothing improper to procure the confession to he made. No objection was made to the statement *49of the witness that the confession was voluntary, and no cross-examination was indulged to disprove the statement. The court, therefore, was authorized to conclude that a sufficient predicate had been laid to warrant the admission of the confession for the consideration of the jury-

It was competent to prove that on the day of the killing the defendant ivas seen with a shotgun by witnesses who wrere cutting cord-wood about a mile or more from the scene of the crime.

The previous decisions of this court have stated that under proper condition® it is permissible, for the purpose of connecting a defendant with a crime, to admit evidence, along Avith the. other circumstances, that dogs trained to track human beings Avere put on the trail at the scene of the crime, where circumstances or evidence tend to show the defendant had been, and that after taking the trail they Avent- thence; to a point Avliere defendant is shown to have been after the commission of the act. Hodge v. State, 98 Ala. 10, 13 South 385, 39 Am. St. Rep. 17 ; Simpson v. State, 111 Ala. 6 ; Little v. State (Ala.) A. 432, is to the. same effect. Where such evidence is proposed ■ to be introduced, it Avould of course, be proper to allow a witness,, familiar with the dogs and accustomed to handling them, to testify that they are skilled in the trailing or tracking of men, and within what time, after the making of tracks, the dogs would take up and follow the trail. The court committed no error in allowing the Avitness Townsend to testify along these lines. There was eAÚdence tending to show that the defendant was in the vicinity of the crimp, about the time it was committed, and hi® confession, tended to shoAV he was present and participated in the murder, and that he left the' scene in company with one Hoskins, and went by the house of said Hoskins on his Avay to his own home, not Arery far away. It- Avas competent, therefore, to prove that trained dogs took up a trail at 'the scene of the crime and followed it to or near the house of Hoskins. The court, therefore, committed on error in declining to exclude all the evidence upon the subject of the trailing of the dogs.

*50When evidence of this character is admitted, a defendant should have the fullest opportunity by cross-examination to inquire into the breeding and the testing of the dogs, and into all the circumstances and details of the hunt, that he may lead the jury to believe, if he can, either that the dogs are unreliable or unskilled, or that the dogs so acted on the trail as to deprive the evidence of incriminating value. For this purpose, no doubt, the defendant’s counsel proved, on cross- examination by the state’s Avitness, that the dogs left the trail in the woods and Avent out into a field, that the Avitness ■called them back and put them on again on the track, and that the trail Avas several times lost. Thereupon the solicitor asked the Avitness on redirect examination, “Why did the dogs quit and leave; the trail and go out into the field?” The defendant interposed an objection to the question upon the ground, among others, that it called for the conclusion of the Avitness. The trial judge sustained the objection, but only conditionally; for he remarked “that the AAdtness could not testify as to Avhy they did so, unless the Avitness Avas thoroughly acquainted Avith their habits and training.” Thereupon the Avitness ansAvered: “From Avhat I Iuioav of these dogs, I Avould say that the reason the dogs quit the trail and Avent out into the field Avas because there Avas a body of men out in the front, and the dogs expected to find , the person they had been trailing.” The motion of the defendant to exclude this ansAver on the ground that it was an opinion and the conclusion of the Avitness should have been granted. The AAdtness could not know why the dogs went into the field. It Avas a matter of inference only.. The cause moving the dogs to abandon the trail and go into the field Avas a matter of deduction from all the facts and circumstances in evidence, carefully weighed and considered, and was not a fact to Avhiclx a AAdtness could testify. Witnesses are not allOAved to reason to a jury. They must speak to and of facts. Like intention or motive or belief, to be inferred from facts, the-jury must deduce the conclusion, unaided by the opinions, reasoning, or inferences of Avitnesses. Peake v. Stout, 8 Ala. 647 ; Wheatstone v. Bank, 9 Ala. *51875 ; Clement v. Cureton, 36 Ala. 120 ; Brewer v. Watson, 71 Ala. 299. 46 Am. Rep. 318 ; Burks v. Bragg, 89 Ala. 204, 7 South. 156. Witnesses must testify, not argue. — Mobile Furniture Com. Co. v. Little, 108 Ala. 399, 19 South. 443.

There is no basis for a distinction between expert witnesses and others which would take even experts out of the general rule against drawing out reasons which conduce to an act or omission to which they depose. — A. G. S. R. R. Co. v. Hill, 93 Ala. 514, 519, 9 South. 722, 30 Am. St. Rep. 65. It may be the opinion given as' to the reason why the dogs left the woods and went into the field where the men were ivas derived from facts within the knowledge of the Avitness, but the facts were not disclosed. He Avould no doubt have been allowed to state any facts Avithin his knowledge from Avkich the jury might have inferred the abandonment of the trial was induced by an expectation that the person sought would be found among the croivd of men in the field, but the inference must be drawn by the jury. The witness could not properly he allowed to substitute himself for the jury, and to draw and state the conclusion in their place and stead.

For the error pointed out, the judgment must be reversed, and the cause remanded.

Reversed and .remanded.

Haralson, Dowdell, and Denson, JJ., concur.