*1 Appellant. STORM, STATE, Respondent, v. No. 9033. January rehearing 15, December 1951. Submitted 1951. Decided on (2d) 1161. 238 Pac. *2 appellant. City, for Leavitt, Mr. W. B. Miles Coyle, Butte, Mr. W. E. curiae. amicus Coldiron, H. Atty. Gen., William Olsen, H. Mr. Mr. Arnold Atty. Gen., respondent. Asst. orally. argued
Mr. and Mr. Coldiron Leavitt Rehearing On Petition for MR. CHIEF ADAIR: JUSTICE judgment jury’s
From a verdict entered on of conviction Loy degree, finding guilty him in .the first John of murder Storm has appealed. April 1st, Friday,
At :40 evening about 7 o’clock on of 1949, At the time Russell Bean shot in the back and killed. country four supper he was seated at the table his small room Forsyth. 14 miles back was to home located about west of His without. At south window. The bullet came from about pane bullet a small the center of the lower window made ordinary pencil. hole the diameter of an wooden lead about With at time decedent of his death were wife four lights It children. was after dark the electric minor No found who saw who fired the on in the house. witness was fatal shot. (cid:127) siding is north of Finch Bean home located The Russell railway. Adjacent Northern Pacific main line on the east travelled boundary fence west line south Bean’s Trail, Yellowstone referred to the old country known as road county Paralleling 1. such road county No. as road in the record and adjoining right-of- it on railway’s'fenced the south is the way, siding tracks, wherein are located the main line set of spur tracks a set Paralleling railway tracks. tracks railway’s way and to south of the right south fence Highway United States A No. 10. side road leads north from Highway U. S. 10, crossing railway extending No. tracks and north dwelling to the Bean which is located 42 rods distant some Highway lane, testimony S. A U. No. 10. to in referred county 2, south-westerly High- No. road extends from U. S. way No. 10 Mrs. dwelling passes Ethel Storm’s a trailer house dwelling, located about 35 rods west such wherein that time son, lived Ethel Storm’s John Storm, Everett her husband, Loy Storm, divorced John 57, hereinafter referred Loy to as Storm. neighbors
Russell Bean’s nearest were Mr. and Mrs. Robert Ross, whose quarter home was located a of a mile southeast the Bean home. Mrs. Ethel dwelling Storm’s was situate south west of directly the Boss home and almost south of the Bean *3 dwelling. dwellings Storm, The of the Bosses and of Mrs. Ethel Loy son, as as occupied by well the trailer house Storm and his Highway were located S. all south of U. No. 10. Immediately following shooting, the Mrs. Russell Bean dis patched young neigh her son foot to the home of her nearest bors, Mr. and Mrs. Ross, help. Bosses, Robert for The accom panied by Bean, proceeded William then the ranch to home of Mrs. Ethel Storm, a sister of decedent where a there was tele phone phone and from placed Forsyth where calls were to done, doctor and an Bosses, accompanied ambulance. This the by Bean, William Chandler, Ethel Storm and Milton proceeded home, arriving Russell Bean 8:30 there about o’clock p. m. p. m., Beals,
At 8:50 C. county coroner, about o’clock W. the by accompanied driving Burdette Beals and brother Forsyth. ambulance arrived from At the trial the coroner testified that up, when he drove quite people time; “there were a number of in the house at the Storm, Mr. Chandler, Mrs. Milton Chandler, Mr. there was the Bean children, some of Bean and Mrs. Bob Ross and the ’’ children. Davidson, under- the coroner, Maurice After arrival of the the the yard of into sheriff, accompanied by his wife drove in- who they by Milton Chandler met Bean where home undersheriff entered formed them of homicide. his wife investigation and then sent dwelling, amade hurried remained Forsyth Davidson summon sheriff while scene. shooting, hearing Thereafter, persons, various other and walked their cars parked came to Bean home where premises. in and about the house and Floyd Dowlin,
At p. m., 10:00 P. about o’clock the sheriff testimony “'Whitey” Dowlin, sometimes referred to in body Following inspection arrived. and the brief (cid:127) premises, sheriff, coroner, proceeded accompanied son, arriving occupied Loy the trailer house Storm and his occupants bed, there 10:40 m. p. Finding about both o’clock the sheriff informed had killed Russell them that someone Bean and, after talking looking with them and over the trailer house contents, and its returned to sheriff the coroner Bean home.
Shortly Ross, bus, thereafter Robert who drives the school Mrs. took Bean and Mrs. her children to the home of Ethel spent night. Storm where the mother and children arranged Spannagel, Thereafter the sheriff for Eli a rancher man, Clauson, and his hired Jack come to the Bean home and watch it night for the remainder of the when the officers should Forsyth. respective return to their homes in *4 Spannagel and Clauson arrived the Bean home at sometime midnight after and upon the and arrival coroner the Forsyth body sheriff left for with the of the slain man. m., undersheriff Maurice David- a. the 1:00 o’clock
At about only Spannagel and Clauson at the Bean leaving departed, son during home to molested the nothing therein should be see family absence of therefrom the and officers. morning April 2nd,
At about r00 o the ’clock on the of together Spannagel sheriff returned the Bean and home began and examining dwelling premises Clauson They evidence. pane observed the small in lower hole glass in dwelling. the south window of the The distance from the hole in pane the window floor of the house measured 36 inches.
Track Shortly arrival, Saturday morning, No. 1. after his April 2nd, Spannagel the sheriff attention of called the Clauson depression yard to a small oval grass where the appeared slightly down, pressed depression to be which was at a spot damaged 49feet to the south of the window. This de- pression proved to be photo- so faint indistinct that neither graph it, nor cast could be but taken the sheriff testified opinion pressing the track or grass repre- down sented a footprint. human
At direction, Spannagel sheriff’s marked depression, hereinafter referred to as Track No. with a small wooden stake ground which he twisted into spot indicated map the letter “D” on a the area drawn to scale witness, state’s H. Young, map G. introduced evidence 2. state’s Exhibit marking depression,
After sheriff, so Spannagel portion Clauson walked back and forth over all that of Bean’s lands located to the south of dwelling searching for human footprints. presence tracks or persons numerous who premises had walked about the shooting, after the both before and after the arrival of the officers and the absence of snow, rain or mud made this task most difficult.
When conducted, Span- asked state how the search was Eli nagel testified: “We followed—when we found a track we began to see where this track went and there follow to places plain consequently that tracks weren’t too we some opposite slow, going off directions worked rather sometimes *5 different or any tracks other if there were places see some to or place this away from led might have of kind tracks that foot- particular one traced —this footprints we this one set of away led definitely find that only we track could print was the place.” from that tsetified: Spannagel
Mr. also duty there? night you were on “Q. raining It wasn’t No, rain. no A. there was you many did observe approximately Now how tracks IWell never them? A. imprints, we want to call
or whatever them, many. attempted good to count but a ' ‘ ? Q. you you made the observations And who was with when Whitey Dowlin, A. Jack Clauson.
“Q. Now ‘D’ come back the black dot marked we you, south the Bean Mr. Mr. of house. Did Clauson and Dowlin person get up track, other after daylight, on that close A. to it? No.
“ Q. anyone permitted What was the furthest that was approach approach or did track £D’? A. Well outside marking anybody it, I doubt there was within foot whether half or two feet.
££Q. right approximation All now—and a fair ? that’s A. Yes. ££Q. And that was made a mark when made? A. Yes. ‘‘ Q. jury Now mark ? tell what kind of a was made A. Just put up a small stake was there. * * * ££Q. By put A. I who? up. it ‘‘ Q. you impress Did that stake into ground point at that necessary you it or was it? just put to drive IA. a little * * * in it. twist ££Q. you Now having did after print marked that to which just you testified, Spannagel, have Mr. and at the time you print, you marked back who stood or around only at that time I believe Mr. there? Well Dowlin there. and Jack were
££Q. approximately would what time in And that
day? making A search .Well that would be while we were for tracks, early morning.” in the yards
Track No. 2. At a distance southwest dwelling the a second so- companions sheriff and his observed called grass being appeared track in the Bean’s field what single them footprint to be a near west fence and re- Bean’s ferred to as Track No. 2.
Track No. 3. At yards dwelling distance about *6 grass the searchers a in in observed third so-called track the Bean’s eight field located about feet inside of Bean’s south boundary line fence and referred as Track No. 3.
There was no tending evidence Track No. 1 show that being “depression” the grass in the had connection what- ever with either Track No. or No. Track 3 or that these tracks by were either object made the same person. or the same About :00 Saturday, o’clock m. April 2nd, a. H. Young, G. experienced an engineer, civil request, at the sheriff’s came to where, the Bean accompanied by home sheriff, he viewed arid examined footprints tracks, the so-called or made various surveys measurements and home thereabouts, of the and area performed experiments certain maps and made various dwelling and area.
When asked to “depression”, describe the being Track No. Young, Mr. a witness for state, testified at trial: grass “A. Well pressed was down was; soil * * # grass pressed soil down point. at that “Q. print Describe the specifically as size, character and appearance of was. it A. itWell was rather oval shape in well, say I by would 5 inches, about inches something like that. ‘‘ * * * Q. just And ? A. was there the one All I is the saw one.
“Q. Yes; an yes, Did make examination of it? A. I did. “Q. print, print Did it marks of have the a shoe or foot- print? A. It could have been.
“Q. A. could been. What? It have was; depression it What? Describe what it a ground ground? depression, hole in just slight Well a very comparatively dry was rather and it was solid there and recently something position evident there. there had been Now positively say footprint, when I saw it couldn’t it was print knee sitting or whether but something had been down object there is some position.”
On morning April 2nd, Young Mr. and Sheriff Dowlin performed experiment running heavy or test fish line through pane, the bullet anchoring hole the window one end heating line inside a home stove the Bean and then carrying the line depression to the marked “D” measured Sheriff Dowlin Young feet south of the south 49% Young window. testified that he “stretched it fish [the line] ” out onto the land and it directly came point over £D’ further that he was not sure whether the sheriff held the line inside the stove “or whether we tied hut we anchored it ’’ there.
Thereafter the sheriff damaged removed the south window from the Bean placed house and init his car where pane glass, purported with the bullet hole in center, fell out and was shattered. The window frame so taken from the house was *7 admitted in evidence as the State’s Exhibit No. 27 and the fragments of the shattered glass therefrom as the State’s Ex- hibit No. 28.
To engineer enable the H. 6. Young accurately place on maps his the “footprints” so-called sheriff, observed- the Spannagel Clauson, the sheriff retraced his steps to each track, commencing with 1, being Track No. “depression”. the footprint At each placed so-called the sheriff a held sur- veyor’s graduated engineer twelve foot stadia rod while the map. indicated the location of the sheriff track on would the rod to next track then move stadia the where the had operation repeated same until each track been located maps. on the 21, Nos. and 3 located Tracks
Other In addition to Tracks. found in the to have claimed pasture, in Bean’s the sheriff land, prints two 1, county No. to the south Bean’s road pit inside designated 5. In a as Tracks borrow Nos. county road way railway’s of the right south grass 8. In the 6, Tracks Nos. 7 and sheriff observed No. observed Highway south U. S. No. Track 10 to highway Tracks Nos. the field further south of were observed. Engineer Young testified:
As to such tracks then. 2nd; I those morning “A. I saw saw on the those day? A. “Q. morning of that And about what time in the 9:00 got I I about o’clock Well as near as remember there can say day, I through wouldn’t and it was from that time on I just I located them followed when it was I located—how they really locating those and were officers as the tracks. ones that located them but saw Mr. “Q. Mr. Dowlin and What there? A. officers were Patrolman, Marshall, and Handley Highway Jack and our local City; Miles Highway Patrolman from our Undersheriff and the fellows were all there.” those morning April 2nd, Handley, police Vern on the
Also expert footprints many years’ experience and an officer of sheriff, where, accompanied arrived at the Bean home highway undersheriff, county attorney, patrol- two Clauson, in- men, Young, Spannagel Eli and Jack H. G. spected examined each track. No. 1 feet “depression” being Track located
As to the 49% for the state dwelling, Handley, a witness south Vern testified:
“Q. Did you examine that one? A. Yes, sir; I did. [*] * * No. attempt any impression of it? A. “Q. to make Did # sfc marker there? time stake you observe at Did very closely im- twig up to this a small set
A. There was * * * pression. *8 examination, basing your you your “Q. state from Can observation, upon your answer experience, observation and what kind print My of a observation? was? A.
“Q. talking now, print. I am ‘D’ first A. That about depressed shaped slightly rather the center or bowl my impression appeared conclusion was that- it to a knee any more so than type. other
“Q. impression An ? of a knee A. Yes.
“Q. type? Than A. other Yes.
“Q. conclusion, understand, That specifically as is based upon you the observation that made connection with the impression? A. right. That is
“Q. impressions particular Were the observation did —what you make in imprint connection with the that would differen- you tiate footprint? from a A. It had no sharp corners whatsoever and it shape was different than a sole of a shoe normally would make.
“Q. you Have prints? studied and observed knee A. I have tests, yes. made several “ Q- Was it similar you prints knee have seen established by proof? right. A. That is
“Q. And you that’s the reason print? call it knee A. From my yes. observation,
“Q. prints From the you other saw, you did form a conclusion they as to whether footprints? were knee or A. The balance prints or fragmentary prints, depressions that man, say. made I would ‘‘Q. your From impression, you are say able whether prints? were shoe or overshoe say heavy A. I’d rubbers or overshoes were worn.”
On his direct special examination prosecutor Sheriff Dowlin testified:
“Q. Dowlin, Mr. Now clearly have mind that point ‘D’ on the State’s 1 is Exhibit No. identical for illustra- purposes tive dot No. on State’s Exhibit No. 2. is that right? Yes, sir. working your you personally, Did in addition *9 fixing of locating and to Engineer Young
assistant by personal footprints those to, locate footprints referred you the examination entirely aside examination confusing, it even it’s question, rod? Strike made with the as an fix personally Dowlin, you did both confuses me. Mr. assistant as testified-to being engineer’s an individual without of those identity each one Young, Mr. location and I did. plat? A. footprints marked on that which is surrounding footprint “Q. reverting the area Now to par- represented around area No. 1 and and the the residence Yes, ‘D sir. ticularly footprint point No. ’—A. 1 or Spannagel and his as- “Q. Mr. you specifically instruct —did not Well we did carefully guard that situation? A. sistant to morning.” footprint until discover that midnight on until after having Not come to the Bean home knew Saturday morning, April 2nd, Spannagel and Clauson prior nothing about the situation which there obtained to arrival. expert footprints and the
The state’s witness on sheriff respecting Track No. 1. reached somewhat different conclusions Dowlin On his direct examination Sheriff testified: “Q. Dowlin, my to Mr. there seems mind some con- my fusion to which attention has been directed as to what has in our a footprint; been referred to No. 1 as of course Exhibit appearance footprint you if it a I had the want to know it; you print, your if per- what kind of have concluded from examination, Well, A. sonal was it? it was— permit I ask “Mr. Leavitt: would the Court not opinion but give to state what it was. witness “Q. was? State what it words, In it.
“The Court: other describe very footprint. “Q. A. Well was definite Yes. it, ground. “Q. condition around describe Describe the myself make clear I’d have in that —to ground was Well explaining, possible. if other to do some if it is Mr. Leavitt objectionable and if it’s not You can the wit- you; go When stop just will ahead and the facts. state my according Young ness H. G. witness stand ground, in the recollection, impression described that as go into Later when inches and I want to it now. inches am footprint, I I examining I referred to it as a witness print, I don’t somebody not sure whether said it was a knee exactly, remember what the record but in event want jury, gentlemen do is to tell the ladies and to describe talking now I am No. is in this about that’s one which case testimony as is located from feet engineer’s south 49% *10 Yes, that A. sir. window.
“Q. That is the window which is shown on State’s Exhibit 1 ** * is the one Yes, which a through. bullet went A. sir. “My early reasons for getting out so morning there on the of the 2d—
“Q. (Interposing) you I go that; don’t want to into what explained have right is all you but what want to do now is you told us there were there, fresh conditions now describe— tell us 1, about that No. point is the we are interested in. A. Well there was footprint. a
“Q. your opinion? That’s My opinion, yes.
“Q. it? Describe A. Well there just a footprint there. right, All that’s fine. Now prints was it similar to other followed? A. It wasn’t plain as as some of the others ’’ but it was similar of the others. covering In the lands to the south of the house the state’s Handley witness Vern found footprint but one all the Bean premises sufficiently that was distinct to impression furnish an cast, being or Track No. 3 yards located 80 southwest of the dwelling but eight about feet from boundary line fence separating the Bean county lands from the road No. 1.
Plaster 11. By Cast —Exhibit filling Track 3 quick No. with a drying dental plaster Handley Vern plaster amade cast thereof which cast was in admitted evidence at the trial as the State’s Exhibit 11. No. Handley
Plaster 12. Mr. Cast —Exhibit next filled with 358 resulting and the county road
plaster 4 in Track No. located as State’s the trial plaster was admitted evidence cast 12. Exhibit No. borrow in the soft print Cast —Exhibit 10. A heel
Plaster of way the south pit railway’s right and to within the resulting cast county and the plaster road was also filled 10. Mr. No. Exhibit was admitted as State’s evidence accurately state whether Handley not testified that he could 6, 8 7 but Tracks Nos. or exhibit was made from so numbered. opinion represents his three tracks one tracks Handley various completed Mr. his examination making p. 12:30 m. on plaster and the at about casts Saturday, April tracks would admit of Only 2nd. three entirely proved All photograph either cast. others or too faint and indistinct. Nos. plaster being
The three casts the State’s Exhibits court, 12 having are been certified to how before this original this court exhibits. obviously impression
State’s is a cast Exhibit No. made a much smaller and narrower heel and different shoe Track than made either No. from which the other two plaster easts taken. clearly impression No. 11 Exhibit is a cast of an made
State’s grass by right having overshoe much wider and dif- *11 shaped ferent heel than the shoe that made the track from which 10 Exhibit taken. the State’s No. 12 impression Exhibit is a State’s cast of an made in the county by right heel, travelled road shoe with a sole and toe smoother and more indistinct than those on the much shown appear No. 11. It State’s Exhibits State’s Exhibit would by from tracks left different 10, 11 12 were taken Nos. shapes and from footwear with different sizes shoes of or identified. was never connected accused which the his visit shoes on defendant’s examined When the sheriff he them April 1st found night house on the trailer to the of mud thereon. accumulation any recent signs dry with no According Handley, footprint expert, pointed tracks by overshoes, by heavy out sheriff were rubbers or made yet possessed no such footwear was to have been found or shown by or worn testified defendant at the time involved. Defendant had no this tes- rubbers or at the time and overshoes timony wholly by de- stands uncontradieted. The shoes worn original fendant are now before certified this court here beyond comparison exhibits and their with casts shows question impressions that such shoes never made the or imprints from which the casts taken.
At case, the close the state’s defendant’s counsel made a
motion relating to strike the evidence to the tracks as tes Young, tified Dowlin, Handley, Span the state’s witnesses nagel, Davidson, again Clauson and at the close of the entire case a like interposed motion strike such evidence was counsel, defendant’s assigns defendant here as error the denial of the motions. being
There no evidence that or connects identifies the de any fendant with footprints, the motions should have granted. been As is said in State, Kinnan v. 234, 86 Neb. 594, 595,
N. W.
think
A.,
27 L.
S., 478,
R.
N.
480: “We
evidence should have been
testimony
excluded. No
pro
duced showing
tending
to show that
footprints
were made
by the defendant.
It
they
is not shown that
corresponded in
any way
by him,
with the shoes worn
only
and the
fact shown
which tended to
him
connect
them
manner was
led
the direction of
home. We
his
think this evi
dence
prejudicial
was erroneous and
rights,
defendant’s
and within the rule announced in Heidelbaugh
State,
v.
499,
Defendant as error the admission in evidence, over objections the State’s Exhibits 10, Nos. timely and also the denial of his motions to strike the evidence relating to the casts made at the close of the state’s case and again at the close of the objections entire ease. should
360 again granted, for here been sustained and the motions have to connect or even tends that connects there was no evidence plaster so received casts identify any or defendant with proper evidence in render it admissible evidence. To tracks or defendant with must at least tend to connect the proof In short footprints from casts were made. which the A him.” de- behind “that he left such evidence must show conjectures, on may not be convicted fendant on trial murder probabil- justified, on shrewd, suspicions, however however establishes only upon ities, strong, but evidence however beyond guilt doubt. a reasonable Unable to 34. 33 and The New Overshoes —Exhibits Nos. belonging to or footwear shoes, overshoes other find plaster any of tracks or corresponds defendant testimony exhibits, they had introduced casts about which pair court a of new introduced in prosecutors for the state local stores heavy purchased one of the apparently overshoes Forsyth placing them on de express purpose for the witness stand. he take the feet at the trial should fendant’s by anyone been worn had never These brand new overshoes that and, 33 34 over Nos. the State’s Exhibits were marked as has defendant objections, evidence and defendant’s admitted assigned error admission of such evidence. chief, took its case in defendant
After state had rested behalf. He was then and testified his own witness stand who, presence special prosecutor cross-examined place on his the new jury, compelled feet defendant occasion and to purchased the state for the overshoes so comparison plaster with- two casts there submit to tests of 12. Exhibits Nos. being the State’s plaster is Nos. and 12 each a east Exhibits The State’s print right person of a impression foot some from an or made a is of left foot. persons, unknown. None brand new overshoe for a Exhibit No. 33 The State’s No. its mate for left right the State’s foot while Exhibit compared carefully these overshoes with the We have foot. *13 impressions than the considerably longer casts. Bach overshoe is it prints plaster from casts were taken which the taken were plain prints were from which the casts as the State’s by large long never made overshoes as Exhibits 33 34. by prosecu-
Undaunted facts and conditions the these obvious tion in presence jury of the handed to defendant the brand 34) (Exhibit new overshoe No. for the left foot and directed place plaster suggestion: him to it on the cast with the Seems 34 to fit doesn’t it?” Exhibit No. to neither “seems obviously large fit” nor does it fit It too the east. was and is may for the An cast. overshoe made for a left foot sometimes placed right right foot but seldom “seems to fit” a foot as foot for comparison well as the which it made. The was proceedings indulged was unwarranted and the thus before jury highly prejudicial. were People 138,
As was
Mullings,
145,
said
v.
83 Cal.
23 Pac.
229, 231, 17 Am.
Rep.
St.
223:
quite
“It
evident that
the questions and not the answers were
prosecution
what the
thought important. The purpose
questions clearly
of the
was
keep persistently
to
jury
assumption
before the
damaging
proven,
facts which could not be
impress
thus
upon probability
minds the
existence
the assumed
upon
facts
questions
say
which the
were based. To
that such a course
prejudicial
would not be
to
ignore
defendant
is to
human ex
perience and the dictates of
Compare:
common sense.”
Stokes
State, 5 Bax.,
619,
v.
64 Tenn.
30
Rep.
Am.
72; Day v. State,
667;
63
State, supra;
Ga.
Kinnan v.
Hodge
State,
v.
37,
97 Ala.
164,
Rep. 145;
38 Am.
So.
St.
Craig,
Johnson v.
172 Iowa
401,
584;
154 W.
Parker
State,
N.
v.
Trailing Bloodhounds. morning On the April 2nd the arranged sheriff George Talbot, 36, with one of Corvallis, Mon- tana, bring Forsyth young to two bloodhounds owned and by him. trained
At April 2nd, about 2:30 Talbot o’clock on the afternoon of by plane dogs giving a brief arrived with the and after them arriving home, rest he was driven the Bean Sheriff Dowlin to p. there at 3:00 o about ’clock m. immediately
Sheriff so-called de- Dowlin showed Talbot the pression being Track No. with the small wooden still marked nine Spannagel ground stake Eli some had twisted hours stake before. indicated Talbot that such The sheriff spot “starting point” marked to be the whence trailing dogs expected obtain a and then start scent trailing began. somewhere, someone and it from there the little starting sheriff manifested but After thus hounds. Instead in their He did not follow the chase. interest southeasterly in a direction from the Bean house he walked *14 southwesterly Highway No. leading from H. S. the lane house, where, point at a on such lane trailer toward the Storm highway operated car patrol into state gate, near he climbed a a the then driven down by patrolman Jack Marshall and was feet south of the Storm point.about ten or fifteen lane to a got out of the ear and walked where sheriff trailer house the he found and of the trailer house wherein south door to the son. and his talked with the defendant the occupied peace officers followed cars, other Other stopped lane and near Marshall down the patrolman sheriff and separate out took stepped the and where officers the trailer house where of the trailer house and west to the south stations hounds. anticipated arrival of Talbot and his they awaited the dogs, the awaiting arrival there the Among pf officers Highway Dowlin, State Patrolmen were: Sheriff addition to Alecksieh, Undersheriff Maurice David- Louis Marshall and Jack Lyons Handley, Chief and Yern son, Deputy Sheriff Charlie City. of Miles Police north, approached captive dogs time, After lay down. The sheriff then and then trailer house at the sniffed guided house and him trailer out of the defendant brought dogs lying. Upon then were road where place in the got hungry friendly but beasts approach defendant’s the two shoes unlaced up, wagged tails, defendant’s — —sniffed Talbot, whereupon hands, food, empty begging licked his “That’s defendant, said finger pointing accusing your man.” country lane in a pre-trial
Thus at a conference conducted six as- dogs and dog trainer, old his two nineteen months as the pointed peace officers, out sembled was the defendant there- depression being one made Track No. who had fore one who fired shot. the fatal state,
At eight defendant’s trial held later, some months over repeated objections, defendant’s was allowed call George the witness stand Talbot and the various members of peace his audience participated officers who had in the demonstration so jury conducted and to relate to the the so- testimony” called “bloodhound interpreted as it had been by Talbot, translated for dogs’ them handler.
As a testimony foundation for this George Talbot testified history, pedigree, qualifications, training experience dogs. He dogs testified were bloodhounds of pure blood; mates, whelped were litter August 29, 1947; got Layton that he them from one Chicago Lewis when they were old; seven weeks that he had never theretofore owned handled bloodhounds but previously had owned coyote dogs; some males; that both that one had been totally blind since he was five months old that such blind- dog’s ness trailing ability did not affect the only but made him *15 keener of scent.
Talbot also testified that when pups were about two months old he training; commenced their that he had never taken lessons from expert breeder or trainer of blood- hounds; that he had previous experience had no in training such dogs; that when he bought pups gave the seller a him letter of instructions on how to train bloodhounds; that he followed such letter of instructions supplemented the same picked some literature had training on which he bloodhounds
up and read. ' When asked to how had trained inform the court as to he these dogs, Talbot testified: you
“A. get Well to a bloodhound start to run a track have to hold him him with person and let some other torment just meat otherwise feed him a little bit.
“Q. eager you gets When train him? A. Until he start they they away to run in and then them ride move from drop garment personal it, or a has a scent on on personal clothes, they sight. go a out of short distance you your dog you garment Then when start him this lead in dropped which he on there he his head or track get has to man from. trail the he the meat which wants to “Q. you go along your training A. Yes. And then as you training people as—I used have other enter into the such my wife.
“Q. they They A. cross-track which the What do do? running. dog is
“Q. and tell a little more detail about that. goWell ahead and I am they people if I have four out there ifWell —-like my I drops garment start running in which one one persuade training pack others a willow to dog on then in the stay If takes over to dog with the track. he that he has to which, wrong, if goes party it’s one of those others he I him back and give slap this willow and take him a way taught; he has to run and that’s the start him over track there is no reward.” certain one training season that his The witness testified 15th September September, until about April “from just keep them the car them rode behind then then from a on one track it’s hours before you use bloodhound hard. If can start you them to track. him over on [*] * [*] a. different scent without teaching upon track, say it’s dog is started when the Now dog put how place, tell us ground some track *16 wanted to you If track in which track? A. there was a carry your on, you’d start him dog garment had no to start and minute your dog high from car and then with his head in you scent, which drop head on that’s the scent he takes and follows.
“Q. training dogs And have been sub- is that that these jected they to, subjected kind of particular have been to that training right. garment training? A. is also the That
“Q. great many dogs So that a these been started times have by holding ground in up lifting their head them above the carrying arms and them to a A. No. track.
“Q. your it? run you dogs How do do A. a collar You you your dog you harness and when take from the car * ** up hold his head so get ground. he can’t
“Q. is dog, dogs Now what the conduct these question they they when find person; terminate or what do do? They jump up A. on them wag and lick them way they tails in begging are for their reward of their feed. “ Q. They vicious, not Absolutely are words ? other A. not. ‘‘ * * * Q. way. No, Not trained that A. sir. your
“A. dog To start on a track of this kind? “Q. they After have been on it yes; they after [a track] have track they been on the duplications come across track A. other tracks? That don’t interfere.
“Q. them any way? Don’t bother A. No.
“Q. you they Can tell the court act, how they what do do? They just go right A. through, they on distinguish can they scent are on the scent other people; they all know just they the one scent that They identify started on. will group, only their man in a not I when am running but where my running another man is and if placed upon are wrong dog track, you won’t know what outside want you go run him scent, put want him will on. If fault,' wrong track, my dog’s fault, which is not the he will go regardless on with whether is lost that scent the man
looking my if I lost, for the man that but that’s fault start him wrong on track.”
On cross-examination testified: Talbot your By letting How training? do commence *17 someone in your dog tormenting stand and him front garment, a little meat and when he runs so far then move he away drops garment. hide * * [*] he drops a
“Q. following you’d And in person this follow him to the location hiding where the defendant was either or was located? yes. A. would, The
“Q. You person then, would seek out the you, would might location where ever right. be? A. is That “Q. Following up to stopped where he had where he staying? right. A. That is
“Q. They usually right up follow the man to where would They did, yes. he was? A.
“Q. And what they demonstration would make? A. Well you give meat, you to start with give them don’t it to them all they go time and as in training you give on them a little they * * * person will stand around keep begging to be fed.
“Q. dog Will a follow a trail that has had the scent of the supposed given man to him better than will without the given beginning scent to him in the ? No, in the scent which gets he first nose, into his you that’s the one he runs. If would put wrong instance, him somebody on the one—for if there was you through wanted you here that went got window and up there and messed around that accidentally, track and would knowing case, drop not dog your scent, would on or on a you handled, dog handkerchief had would run rather than the man I gave that made the track him wrong because by. go scent to words, you’d get In other have correct trail beginning ? A. dog The will trail whose ever scent he takes.
“Q. Yes.” preliminary testimony When foundation had been com- tlie pleted Haynes Mr. Mr. Leavitt, counsel defendant and ad- special on prosecutor, respective views stated missibility of such follows: evidence as under course, going
“Mr. are to contend Leavitt: Of we testimony is not form of decisions that have held that rely competent. Haynes going to Mr. other hand is far upon as those that hold that it is. We submit authorities absolutely as we are concerned claim that the evidence incompetent; permitting jury it is consider facts which opinion include competency our at all and we will have no objection testimony, in our it. to that if the court admits Haynes: any “Mr. statement from court doesn’t need anybody, perfectly familiar with the fact that the court testimony goes jury goes the event the under special They being merely limitation cannot as circumstantial. upon testimony convict bloodhound court. question
“Mr. Leavitt: The now before the court is whether competent or not the court will or will not admit this evidence *18 evidence. ‘‘ dogs. The Court: Of the action of these two
“Mr. Leavitt: These bloodhounds. ‘‘ qualifications only The Court: The bloodhounds is of these supported by testimony owner, Mr. Talbot. you Haynes: world,
“Mr. That in the is the best evidence might have a dozen certificates. Registration
“The Court: But the Certificates of recognized American Kennel Club is of law as cer- courts dog being pure tificate of that bloodhound. Haynes: weight percent
“Mr. And it isn’t that the ten testimony dog of that is. value concerned, quite Court: So far as this court it is “The influential. jury Haynes: is true to the court.
“Mr. If it’s true to the agree I that. “Mr. Leavitt: don’t “The I Court: can’t either. Haynes:
“Mr. I can show cases.” Testimony. Bloodhound considering After the foundation testimony court, objections, over admitted the defendant’s testimony” so-called “bloodhound and tes- as same was related Davidson, tified to Talbot, Dowlin, the state’s witnesses Marshall and Aleeksich. throughout trailing evidence shows that the entire each
dog wore a collar A and -a control harness. chain was short snapped in kept dogs separating each collar which from more than and A one one-half feet. lead chain attached to the Thereby tie chain captive dogs was held Talbot. his control. dogs Where the went there all he went. At times held harness, he the lead chain staying and at a distance of about three feet to the rear rumps. of their ‘‘ Sheriff Dowlin testified: After we at Finch I arrived took Mr. Talbot over and him imprint. showed Then Mr. Talbot went back to the car that the hounds was in and led over. them appeared He at holding the time to have ahold of their collars up, heads print. go led them over to Then he let put their heads or print their heads down to the and the quite hounds smelling, did a bit of sniffing. Then hounds took direction south a little bit west from the Bean home through out county the fence to what’s known as the old road.” Talbot testified: “He took me over and I [Sheriff Dowlin] looked and seen the mark and track there in place there dogs was a to start the from so then I went back to got the ear dogs brought the two them out with their high dropped heads them going on the track towards the house or window.”
Talbot testified when he took the car house, “snapped the Bean together.” them He further tes- tified on his direct examination:
Bogs Bragged dropped Scent. “A. their heads on this off *19 just scent or a little ahead where mark was so that there somebody wouldn’t be no confusion if had walked in back to look, dropped I take a them a little hit towards the farther they window on the track and was headed towards from right come back they swung the house and around and then I there as a little field through come the fence or across right-of- fence, up and to the on to the railroad remember up way, along they run side of tracks and made little they track in back down right which turned around come they they to railroad track, where left on the went across the highway track to side of on and went across to the other on highway something or there to the—there was cat some tails drug and a fence but we had to it but I them crawl off from approach there and took them this down to the where road goes you I into the think was the said field ** * county road, up highway. comes on to the “Q. you Now you have getting told us about down what to described as a bog. little cat tail A. Yes.
“Q. directly you? That was A. front Yes.
“Q. What you they was it did dogs, there? Well A. go wanted to tails; on to the cat where there is cat tails there subsequent I water and didn’t want walk in there with county road and all I just had do go down the probably road one hundred feet or so get county road and back up come into put the field in order to them back they where go. wanted to
“Q. you And did do that? A. drug I them to the scent off there, I say won’t it was a track.
“Q. You paying any weren’t attention to tracks? A. No. 1‘Q. Now the were leading you up point. to that A. Sure. “Q. you Now you when took them say jerked up them you being instead of they your control then were in control, you is that what mean? drug right, That away them there. from What did on? A. I took them do then Well county highway county
doion to this road and walked the get road and end the fence to around this back around the there, just along tails, slough or cat went whatever again they in which wanted until hit the scent fence to run.”
370 been they had dragged off the scent
When Talbot his hounds High- along U. S. easterly course following, they then took had Dowlin spot Sheriff way No. 10 and where went patrol car. climbed into the hot-test dogs “run the trailing, testified that
Talbot car, they trail get in a a man will scent” and that “when the of it.” the road and that’s end crossing High- “After Marshall testified: Patrolman Jack along shoulder way they dogs] down the No. 10 went [the then went east forth a little bit and road, back and worked gate. to where there was a
“Q. gate! 10 A. Yes. Highway to a East on Exhibit “Q. point upon State’s And that would be at what gate of the road 2? A. That be the to the entrance would north and south. runs ‘‘Q. that— n Then that would be—A. The road Yes, “Q. junction County 10? A. Eoad with U. S. The going After the road that runs into the Ethel Storm home. through gate they again along back the fence.” went west dogs sight track nor
Talbot testified that his trail neither bloodhound, wholly by scent; nothing that track means to a but coming going; dog “won’t run actual either or track, he track, don’t care about the it’s the scent which he track”; garment starting his head from the gets into or the dragged, dogs they pur- that when from the scent bog suing proceeded along high- eat tail he then at the east way approximately feet; that “there is a lane there highway I comes on to this field or trailer house and just approach got they took them the that and when back track then hunting for the hit it and started started right again.” out highway “onto the from this field” “lane” that crosses walking county No. where Sheriff Dowlin ceased road
n him to the trailer patrol car which carried into the and climbed house. entered the Sheriff Dowlin place where leaving
After a field patrol entered ear about and turned and Talbot north trailer house. Storm and describe proceed Talbot further testified: Now right me they just led dogs? detail the conduct of the A. Well they got within some over to the trailer and when house feet, thirty trailer forty feet, that, of the something or like as I recall, they quit trailing quit picking house the scent air ground from the and started and threw their heads *21 scenting they person the in which from out there at wanted that distance.”
Talbot further testified when at trailer he arrived he presumed house the sheriff “was because I hear inside could them talking, just I sheriff talk and waited there corner of dogs in, they the trailer house which the wanted up reared on the side the trailer house then at the door to get in.
“Q. What was that? A. And waited; pretty I there soon the sheriff brought man, Mr. Storm dogs out and the up both run him up and reared on him and licked his hands expected get something to eat. “Q. they wag express Did delight? their tails and A. That they was who looking were for.
“Q. That person they was the looking were for? A. That right. ‘‘Q. you Now have seen happen under similar conditions circumstances, conduct; observed the same Ias understand you dogs have had these termination scenting and the finding person many, many times, is that correct. A. That right.” Loy
Both the defendant Storm and his son were the trailer when the sheriff house entered. However dogs were not allowed to enter the trailer nor son brought was the out to con- dogs permitted front the nor was he to meet them. It was the dogs sheriff not who defendant and his found son. In fact found and the sheriff and the coroner had talked with both dogs before hours more than sixteen defendant and his son arrived. testified:
On cross-examination Talbot trailer “Q. brought Mr. Storm out say You they? dogs, your did you got down there with house when we there. They brought him out after was A. Yes, sir. made. A.
“Q. any recognition had been Before Whitey. know ? “Q. brought out, him do he, And who # ## rather house (cid:127)“Q. you follow Mr. Storm into the Why didn’t just A. I dogs? having bring him meet the than out to you the door was locked. told He was
“Q. other side? A. Well there was a door on the already was in house. Sheriff —the understand, yes; why
“Q. I but wasn’t That’s what trailer house directly Mr. into the permitted to follow Storm just A. I meet them? bringing instead him on the outside to guess thought I never of that. guess thought, we we never you: dogs, “Q. letting a man You wasn’t chase I cared. dogs chasing the man? A. wouldn’t have instead of the What? A. wouldn’t have cared. Yes, ‘‘Q. done, was it? A. At rate that what *22 sir, brought he was out.” testified:
At the trial Sheriff Dowlin I After the bloodhounds arrived at the trailer house said “A. defendant, says, on, Loy, I get to ‘Come let’s it over with.’ “Q. you say? says, you did A. I What else ‘Either did or it,’ put you do and he on out of the didn’t his shoes and came around the south end of trailer house and door. We walked say maybe 20 oh, I’d feet or feet stopped and up. got hounds and exactly what, according your
“Q. right describe All now They running up A. come recollection, the hounds did? best shoes and trousers licked of his and smelt defendant tails.” wagged his hands Davidson testified: Undersheriff about “Q. a trailer did Mr. out of Now Storm come him believe, brought Dowlin, I time, trailer? A. Mr. out of the out. ‘‘ it ? him, is Q. got Mr. Dowlin into trailer and went A. Or asked him out. to come ‘‘Q. anyone the defend- Did else come out of trailer ant, Loy No. John Storm? A.
“Q. time? A. His anyone there else in trailer at that Was son, Johnny.
“Q. right? Storm, John Everett A. Yes. is that “Q. will jury Now and the describe to Court Loy dogs upon defendant, reaction seeing John They Storm? brought— A.
. goes “Mr. Leavitt: I my general understand in under objection? right.
“The Court: That is “Q. They ahead. Go A. John brought Loy Storm out trailer brought him around the south end.
“Mr. Leavitt: would like add objection the additional testimony that the incompetent, of this improper witness any insufficient give foundation laid to evidence as to the ac- attempt tions or dogs. describe the action of the “Mr. Walsh: relating physical He is facts as he observed them. attempt
“Mr. Leavitt: Or give any conclusion to what their actions were or were not.
“Mr. Walsh: We submit this time testifying that at he is not any as to conclusion. object
“Mr. Leavitt: argument We to this continual our objections made under the rule of the court. ‘‘ The Court: give The witness will be admonished not to conclusions as to what saw. ruling. Exception
“Mr. Leavitt: to the court’s actually occurred, give no Just relate the facts of what your place. A. what took own. Just conclusions ‘1Q. place, yes. tell what Mr. Storm Just the court took *23 dogs run road and the
come out of the trailer and stood iu the and sit down up hands, wagged him tails and licked his their him.” looked at testified: highway patrolman State Jack Marshall defendant, “A. house and yes, out of the trailer came map say there up walked to the —I would to the south dogs to where the were at that time.
“Q. jury the actions you Would indicate to the court dogs upon seeing Storm, Loy John Storm? A. As Mr. very they immediately sniffed the they.seemed pleased, recall him, ground jumped up on standing where he was wagging very happy him. their tails and seemed to see objection has
“Mr. Leavitt: In addition to the been interposed granted Court has heretofore and to which the exception, the defendant moves to strike out the answer of dogs part witness in relation and that of the to what the did testimony dogs pleased that the seemed the reason witness, opinion same is a mere conclusion of the witness upon any qualification incompetent not based and therefore the case.” highway patrolman Louis Alecksich testified:
State “Q. say Whitey brought out, in and Mr. You went Storm right? A. Yes. dogs Would describe the actions of brought time? Well after he was out of the trailer house they brought dogs jumped up around to him and the wagging him their licking on and started tails and him and ” your says, ‘That’s man.’ Talbot Loy the defendant Storm testified: That on the On case April 2nd and his son were in trailer afternoon of looking the window to the east house; that out of side coming up the bloodhounds the road observed trailer house he along; walking that the holding man them as with a get doorway, him to his shoes appeared sheriff —ordered arm, guided him out then, taking him on and further testified that dogs. Defendant in front of road *24 my hand pnt I dogs np me and man with the eased “the that had said, dog,’ and man dog’s on head and I ‘Nice one arm and dogs, grabbed he reached around and blood- up my legs and man with the moved and smelt of then standing on man over hounds turned to Dowlin and another me, (indicating), the other Dowlin here side was over your man,’ standing here, recall, says, man ‘There’s don’t he he people open around there with their mouths stood says, ‘Well, just understand these hounds. fellows don’t they trail, When find their man that’s the there end of ” nothing more.’ place To the accused at the scene of the crime the state relied upon testimony.” placed the so-called “bloodhound It alone him there.
Dogs and other qualify dumb animals do not as witnesses They the courts of this state. know not the nature of They may They oath. not be sworn. cannot be cross-exam They testify only ined. through professed interpreters whose always hearsay. translations and conclusions are From 10:00 p. April about o’clock m. on 1st to about 3:30 p. April o’clock m. on 2nd the sheriff was off and on and in and premises. about During the Bean that time and the coroner complete had trip made one round from the Bean home Storm trailer house and return. In early morning April 2nd, in his search for tracks every the sheriff had walked over part of the area later dogs. covered He, Spannagel Clauson had walked from the Bean home to within a hundred yards of trailer house and then steps retraced their back to Again the scene of the crime. the sheriff same twice walked the assisting Engineer route when Young in preparing maps accompanied by Next Handley area. Vern and others yards the sheriff walked to within hundred of the trailer making house and then back to Bean home. In “fish tests,” measuring line the distance from the bullet hole —in south window the window to the floor and the distance Engineer Young were both to Track No. walk- the sheriff ing removing window from the about the window and in such dwelling placing car, it in sheriff added to his foot- steps in dogs got that area. The their first sniff of the sheriff 2:30 p. about m. 2nd their arrival April upon o’clock Forsyth. When arrived at Finch some minutes later the sheriff give “starting point” at a there to them their spot and in an recently area that he had walked over and so anointed with his scent.
While testimony” some courts have admitted “bloodhound
yet accepted where, here, being given none have after their initial running portion course, scent and after of their the dogs deliberately dragged off the scent their hand ler, highway down spot country the state to a in a lane —taken *25 given and there a fresh start and headed the trailer toward house of the accused wherein the sheriff patiently awaiting captive dogs. arrival of the
In Brown, State v. 103 437, 23, S. C. 88 21, S. E. L. R. A. 1916D, 1295, the court said: very
“It is that, manifest if upon reliance is had the instinct then, dogs, of the that instinct must be free and untrammeled. In the case at dogs bar the wanted to premises enter the of Adam Brown, permitted and were not to do so. This control of the animal, supposed that is to have instinct, by man, who instinct, has not destroys any value may evidence, have as and all reference to the conduct of the dogs should have been stricken from the record.” Compare: People Pfanschmidt, v. 411, 262 804, Ill. 104 N. E. 1915D, Ann. 1171; Cas. State v. Norman, 591, 153 N. 917; C. 68 S. E. Moore, State v. 129 N. C. 494, 626, 96; 39 S. E. 55 L. R. A. State, 137, Davis v. 46 Fla. 35 76; State, 237, v. 186 So. Ruse Ind. 115 778, N. E. L. R. A. 1917E, 726. State, 395, 789,
In Brott v. Neb. N. W. 63 L. R. A. reversed, a judgment holding of conviction was the court being upon bloodhounds after set the conduct behavior of given may by not be evidence the trail of the accused scent purpose proving that the accused state for the which the crime perpetrated person and the scent of the who “The There court said: being investigated identical. are sagacity, and for has, great reputation course, a bloodhound discovery of prevalent pursuit in the there is a belief that commonly infallible. It is fugitive practically criminals ishe crime place where a accepted notion that he will start from upon which committed, miles track has been follow for dictu, him, mirabile set, culprit, has been find the confront This man.’ bay declare, ‘Thou art the accusing and mien incorrigible. strange people apparently misbelief is with some failed experience is a actual has It delusion which abundant has dissipate. generation generation. It It lives on from still ‘Time writes no the attractiveness of fresh creation. wrinkle its a delusion-—an evi- brow.’ But it is nevertheless dent mar- and obvious delusion. sleuthhound of fiction is a The dog, nothing quite velous find like him in real life. We but we repudiate utterly suggestion common knowl- that there edge capacity trailing would bloodhound’s for justify trustworthy accepting us in under conclusions as present circumstances like those disclosed record. The burglary morning July 5th, committed on the before daylight. trailing did not commence until about in the trail, In afternoon. the meantime the near the scene crime, over, closely paralleled, had been walked crossed, directly obliquely, perhaps, a hundred times. And the sun shining steadily had been iton than 12 more hours. The situation the had to exceptionally deal with was difficult *26 one, was, think, accept and it we reversible error to their con- legal guilt. get evidence of clusion as defendant’s To a nearer erroneously ad- and clearer view nature of the evidence mitted, closely trailing path is. let us consider what The every step, every being through world, from human putrescent excretions of grave, is strewn with the cradle to the decomposition. It process in body. waste matter is his This elements, power its and being into its constituent is resolved dog a or other olfactory nerves of impression make an on lapse Under animal of time. becomes fainter and fainter sun, and conditions, exposure air favorable as such free original every compound particle rapidly separated into its is parts, and, complete its characteristic when the dissolution is remarkably gone. is with a scent The bloodhound endowed is His great differentiating keen scent. has ability He smells. trailing simple method of well understood. Particles of is and given particular waste matter a individual fall to the off ground, change and in undergoing while chemical contact come olfactory with the dog, impression produce nerves and recognize, which he is able to from all as distinct and different impressions. easily other may Hence for a man short time a be in trailed open country the woods or effluvia in city, his wake. lapse But and after the of considerable time, trailing obviously difficult, more and often mani- festly impossible. But difficulties do not deter the bloodhound pursuing from his business. trails He as best he can. He al- ways scent, follows some goes Undoubtedly he somewhere. questions nice and delicate again are time presented him for decision. But the considerations that him induced particular adopt case to one conclusion rather than another go cannot jury. jury cannot know whether the reasons on which he acted good bad; were they or whether were all one side, evenly balanced; or whether his faith in the identity of scent which he strong followed was or weak. In attempting separate ten, one twenty, fifty, smell or a hundred similar smells with which it is intermixed com- mingled, highly probable, it quite if certain, not blood- altogether hound undertakes a task beyond capacity. Like dogs, other limitations, has his recognized must be justice, in courts of if not elsewhere. That conclusions of generally accepted the bloodhound are too to be unreliable is, believe, evidence either civil or criminal cases we teach- ordinary experience, ing knowledge of that common subject. may rightfully bring to the examination If we would, evidence, standing legal such evidence held to
379 age of golden conviction; courts, in this alone, sustain a humiliating under the enlightenment, again now and be would of his deprived necessity adjudging be of that some citizen forsooth, within because, property, liberty, life, or his dog in- crime, a or 40 certain hours after the commission of a micro- scent of some dicated his conduct that he believed the perpe- dropped by the scopic particles supposed to have been resembled, with, closely trator of the crime was identical or trial. person put upon scent of the had been accused and who are, know, country There in which hold we some cases this judicial competent, kind of but it seems the evidence is history against of the civilized them. world The bloodhound admit, is, frequently conclusions, we he right in his but that frequently wrong by experience. is a What fact well attested trailing may in regarded does as a the declaration of dis- party, but, interested regarded, opposed so the authorities are evidence, its admission. It is unsafe and both reason and instinct condemn it.”
In Rex White, 43, v. (1926) B. C. D. L. R. Chief Justice J. A. MacDonald said:
“I apprehensive am danger admitting of as evidence may inferences which a witness draw from the actions of under circumstances. The rules of evidence evolved by judges in experience the course of centuries of in the elucida- truth, adopted tion of protection with a view to the society. innocence as well as of The aim of Legisla- Courts and adopt tures has been to will, frame rules of evidence which humanly possible, promote as far as is certainty even at the allowing guilty risk of some men escape punishment. This rejection caution led hearsay evidence, yet has great majority instances, greatly such evidence would aid dangers justice. Nevertheless, attainment of it led its exclusion. the same character
“The evidence admitted here is of objectionable and untrust- hearsay is, my opinion, more this Con- the natives of worthy. parallel case: .Let me state only tracking, ingenuity tinent not were noted re- game, They but for their of their enemies. were notable supposed in that Let markable craft art. it be most *28 skilful that employed of these was to track the murderer and by dogs, he had and followed courses such those taken that con- thereafter he had communicated his and observations another, our clusions to before trial had Under .but died. evidence, rules of as a witness to that other could not be called tell what the had him. tracker told greatest against
“One error safeguards of the falsehood and is cross-examination. down may Even that fail at times to break a witness, efficacy recog- false or mistaken general but its is by cross-examined, nized might all Courts. The Indian have been had testimony he lived his accepted worth, it what was that, by death, having but impossible, been what rendered he had told to dogs, another not given could evidence. The of course, could not have been cross-examined, yet their master permitted detail in to the witness box by what their actions had told him. examples given by
“Some evidence, admittedly counsel of competent, and which was be analogous, e., claimed to i. hand- writing, of analysis, results chemical sup- the information by plied clock, like, examples only go these but to show that the always analogies. law does not follow evi- Such dence, admissible, when is so experience because the common of mankind reliability its has been But that ascertained. even best trained of a breed noted for smell, acute sense of will, unerring instinct, pick up the a scent of criminal and not that another, story actions tell a true of the by him, route general taken is acceptance. not a fact of Nor can, think, judicial I thing notice be taken of a vague so erroneous; liable to be can person pro- neither the evidence of expert fessing give be an it dependable to the semblance of realty. question training is I It not that and keen sense of this; my opinion dogs. found on that the ad- smell of these hearsay evidence, evidence, best akin to mission of such excluded to be this, ought, principle, apart made not be liberty shall ground human or on the life dogs. actions from the depend inferences be drawn upon give police dogs may use such be of assistance obtained, which, if offender, identity them the cue to the guilt, but evidence may up by proof conventional be followed in a place find no dogs themselves should of the actions of the Court of law.” Witness”,
In his article Bloodhound as entitled “The Review, 109, Judge Am. Law J. C. McWhorter wrote: memory, ability observation, “Human accur- facilities of ately memory perceives and the re- to describe what the mind tains, imperfect, scientists, experiments, are after careful so average man, giving have found that the details of what hears, he' fifty per sees and error in more than cent of his Inattention, statements. concentration, lack treacherous mem- ory, bias, prejudice, animosity, friendship, personal interest *29 —any or all in may of these combined a witness render his testimony given in entirely jurors unreliable, case if courts and only could know it. The most honest and man conscientious often memory does not know where imagina- ceases and his begins. tion dishonesty many men,
“Add to this the of the loose and care- thought less speech others, of and habits of the misunderstand- ings others, of the mental others, limitations timidity, of the fear or embarrassment others, readily of still and one can see unreliable, best, how testimony human upon is when based what witnesses have try heard and seen and to relate as re- membered. seem,
“It in facts, would the face of these well-known guarding rights litigants courts be too careful in cannot of against imperfections, especially and these weaknesses where involved, trials, liberty keep and to out of as far as life or is testimony may reasonably possible, character of mind, juries, confuse the arouse feel- strongly tend to mislead any way warp judgment. ings superstitious awe, or in It of And every justice require would seem that this. canon of would yet, every every passionate appeal play jury, dramatic before a jury counsel, represents of an in box effort to substitute reason, impulse passion judgment, emotion for and for sedate jury reasoning and to convert a of men an irrational mob. into * * # ‘‘ may it, of enigmas, prac- But one if I of modern so term appear tice in American in other —is courts —it seems to none subjecting liberty beings and the in- of life of human danger caprice thing sidious of that known as ‘Blood- Testimony.’ hound The admission evidence of the statements of witnesses of is supposed what a bloodhound to have done way of tracking party an accused a modern is doctrine peculiar superstitious to American courts. Because of the awe average which such an animal is man, partly held be- cause of a lack of habits, information its imper- as to traits and fections, partly mysterious because of the supernatural powers of smell and superior sagacity discrimination and the such supposed possess, animal is evidence, such unless most carefully guarded, insidiously dangerous and calculated to produce frightful miscarriages justice. very The name of the animal, ‘bloodhound,’ it a super- carries with terror and sense stitious ‘blood,’ awe admiration. The word in the breed’s name is ordinarily supposed blood-thirsty to indicate the vicious dog, him, traits such as cause when to an un- laid foiled trail a human being, particular trail, to hold like avenging Nemesis, an unerring with tenacity until victim is run to earth pieces, many and torn to no matter how beings dog fresher trails of other human may cross quest. dog supposed mysterious power to have the of dis- tinguishing, accuracy, particular infallible smell *30 particular traced, individual from all millions the other earth, myriads beings teeming smells with other human its * * * produces. animals, days America, slavery the slave-holders of
“During dogs employing tracking idea of the south conceived the blood- attempted escape. slaves then no who There were America, common imported. hounds in But the none were slaves, purpose fox hound was trained to trail and for the keeping intimidated, reports were the slaves awed and generally bloodhounds, dogs circulated that these were great infallible, ‘blood,’ accent on word and that were put and when negro on the trail would abandon never until fugitive run shreds, down and torn to there was escape dogs. naturally no from such ferocious This appealed imaginative slave, helped give credence and circulation reports. to these by
“But began the slaves to learn that these hounds harmless, were and that reports all concerning their vicious- false, ness were began and the ‘bloodhound’ lose terror. trouble, To offset this the common hound was then crossed with Dane, the Great Mastiff, the Cuban savage both and vicious dogs, breeds of and a new strain produced called the ‘Cuban Bloodhound,’ and later and appropriately more ‘Nig- called the ger Hound.’ dogs These vicious, were and the reports former of the vieiousness of the so-called ‘bloodhounds’ were renewed and fully credited, only by not negroes but the whites of both North and South as well. The vivid stories about these dogs in ‘Uncle Tom’s had counterparts Cabin’ every slave-holding section of country. dogs These could, with ease, track barefooted negroes through the swamps and low damp grounds South, and it utterly immaterial whether dog left an older trail for a fresher trail of another negro. Just so dog ‘treed nigger,’ the moral effect was the same. The slaves kept were intimidated, and these were doing their effectively, work regardless accuracy. of their
“Thus this knowledge’ ‘common of the work of the ‘blood- grew. reports hounds’ These exaggerated, and, without scruple, sagacity, falsified and discriminating powers and deadly precision dogs magnified of these very for the purpose of keeping the slave In terrified. this there was eminent success.
384
“But who would dreamed at that that false have time these highly reports colored for the would become basis promulgation of a by doctrine courts of America that would put deadly peril American the lives and sacred liberties of citizens ?
“It will be dogs, observed that these work this from whose Knowledge’ largely arose, coloring, ‘Common at least its took were They only quarter not were, best, bloodhounds at all. bloods; deadly reports all these of the vicious character and precision of the so-called ‘bloodhounds’ had their foundation only fact to the extent that blood of Mastiff or the Cuban the Great Dane been reports had infused the strain. Such into were not English Bloodhound, true of the were. never
“If these facts had thoroughly understood, been I do not believe this insidiously dangerous ‘bloodhound doctrine’ would ever have adopted by any been courts, of the American and that fully when understood, once repudiated it will either toto, or by so emasculated precautionary restrictions as to render it Compare: Moore, harmless.” State v. 494, N. C. 626, 39 S. E. 55 L. R. 96.A.
In McClurg
Brenton,
368,
v.
123 Iowa
In McLeod, State 196 N. E. v. C. S. cer- objections, state over defendant’s introduced evidence English tain pursuing bloodhounds and accustomed to trained pur- human track in such experience and found reliable put upon body suit were leading certain tracks from where the *32 person following discovered; murdered after was that long 20 30 stopped circuitous route the hounds within or feet defendant, of defendant’s house where father and mother living several small children and that when the brought defendant was out the of house the hounds did not bay or Supreme otherwise indicate defendant. The Court hold- ing dog that incompetent the evidence was and its admission prejudicial saying: error awarded a new trial ‘‘ incompetency The of in the evidence the instant lies in case the fact that the action of the bloodhounds such as afford no identity reasonable prisoner inference the guilty as party.
“Nor safely say can we palpably this evidence is so weak uncertain to render its admission harmless. There is telling no prisoner’s how far case was affected it.” In Grba, State v. 196 194 241, 250, Iowa N. 259, W.
court said:
“All the courts that admit such evidence concede that it merely is a circumstance and is ‘of the weakest character.’ If the bloodhound is infallible because of his animal instincts, then evidence of his tracing conduct in being a human would be of highest rather ‘merely character than a circumstance of the weakest character.’ If guides invariable animal instinct accurately matter, him trailing then his conduct alleged criminal would quite be conclusive. courts,
“It all be conceded and must from the facts case, infallible, that the bloodhound is not that he does invariably mistakes, make and that he does not follow a trail certainty. without deflection therefrom with absolute In does, and in what he words, may right other be the bloodhound it to know wholly wrong. possible may How right wrong? or particular he is case whether committed that the trial court "We are constrained to hold submitting this this evidence and error in the admission of jury, judgment question to the and for error is, be, Compare: reversed.” State district must and. court 1295; 437, 1916D, E. R. 21, L. Brown, v. S. C. S. Y. People 171 N. 109. Whitlock, App. Div. S. v. petition for re- is now before us on defendant’s This cause upon pass has asked to hearing. Never before this court been admissibility tes- "bloodhound competency of so-called on the timony”. arguments and briefs of counsel both appeal upon petition rehearing have proper and been firmly carefully and this court is now examined and considered testimony” admission of convinced "bloodhound prejudicial error a denial highly constituting improper was entitled. rights of substantial the accused obtaining elsewhere, here Irrespective of the rule we hold testi jurisdiction that in such so-called "bloodhound *33 mony” the trial of incompetent is and inadmissible on person it is so declared. accused of crime and crime, guilty
Every person charged plea not with a on right and and to a fair im has an absolute fundamental partial pursuant government, trial under and to law of the the having sovereignty and of which he is accused of offended duty it is that most substantial and of the courts to see right upheld vital is and sustained. opinion
Accordingly majority pronounced heretofore opinion and this is ordered substituted ordered withdrawn judgment therefor. It is further ordered that the of the district for a and it reversed and the cause is remanded court be proceedings not inconsistent herewith. new trial further Remittitur will issue forthwith.
. FREEBOURN, ASSOCIATE JUSTICES BOTTOMLY concur.
MR. (dissenting). JUSTICE ANGSTMAN: judgment I think majority In should affirmed. opinion the facts are the edges so embroidered around and so embellished with unwarranted conclusions of the author as to it appear make pursuing that the the sheriff bloodhounds were instead of the A defendant. fair consideration of the evidence dispel any should such a conclusion.
Even astute counsel for the defendant did not so construe the evidence. placed point were on the scent feet 49^£
south of through the window which passed the bullet caused the death of decedent. point
This was 2.9 feet below direct line extended point where the bullet struck through the stove the hole in the through window which spot the bullet entered. This carefully guarded'and was permitted it; no one was touch point south of this the Bean house between trader occupied by defendant, 1,750 house some feet the south and west, there were several human tracks found in dirt headed southwesterly in a direction; these tracks were located the morning homicide; during after night men two placed charge premises guarded of the it with flash- lights; they persons testified that no traversed the area to the south during of the house night; there was evidence that against decedent, the defendant had made threats some day homicide; which were made defendant and difficulty decedent had had some machinery connection with jointly operating ranch; used in defendant desired to either buy Bean, Bean’s interest or to sell his interest but any agreement unable reach with the decedent. There also evidence after the defendant was arrested and jail placed made a statement to one the inmates in the *34 jail got gun Bean; that he a and killed the decedent on the by Mr. Talbot April of the owned
afternoon 2nd bloodhounds ap- Hamilton, placed upon the track Montana, were ground kneeling peared by person have a on the to been made house; point the bloodhounds at the south of the feet 49% south and south- general turned about started in a direction highway tracks and the railroad west the house and crossed proceeded to the No. 10 from there further southwest county situated near the road and which trailer trailer son; pursued the occupied by the hounds the defendant and his being pre- were general the tracks a human course where found; a viously few feet from the trail dogs the were diverted it as entered a with cattails because was pot it small hole filled by dogs on walking, up picked but trail was easier it; from where the trail entered opposite pot side of the hole brought dogs the defendant was when reached the trailer by dogs degree a out of the trailer the sheriff and exhibited defendant, licking jumping of friendliness for his hands upon Talbot, dogs testified him, which Mr. the owner of they finding persons taught were were to do when trailing. admissibility agreement to of so-
The courts not in as are overwhelming weight of author- called bloodhound evidence. ity, however, such admissible if there has holds that evidence Jur., rule in Am. proper been laid. The is stated foundation un- 331, follows: “Considerable Evidence, page section as reliability dogs certainty in the minds of the courts opinion on the identifying and much conflict of criminals in evidence have question admissibility of their actions of the however, cases, that most survey A reveals courts existed. admissibility trailing question of evidence of which the that, position upon presented take the bloodhounds has been being proof were proper laid foundation .beings human the circumstances qualified trail that' probable trailing such as make it surrounding guilty party, such is ad- person was the evidence trailed jury go what may permitted missible
389 may worth which tend to connect as one the circumstances also, S., the 22 C. J. Criminal defendant the crime.” See Law, 413, 42 R. A. p. 988; in 94 A. L. R. L. 646, sec. Annotations 870, 1917E, and 1 432, A., S., 730, 35 N. L. R. A. L. R. Evidence, Ed., 380, p. 11th 602. Wharton’s Criminal sec. annotations, joined the Since the above other state has one majority. Buck v. by That was Oklahoma in ease of done State, 17, (2d) majority 77 view Okl. Cr. 138 Pac. 115. The supported following Ala- therefore is in the states: courts bama, Arkansas, Carolina, Florida, Kansas, Kentucky, North Carolina, Ohio, Texas, South Missouri, Pennsylvania, Tennessee, Mississippi, Georgia, Virginia, Oklahoma. West Louisiana and The following reported R., cases since 94 the annotation in A. L. others, and perhaps recognized majority have being rule as proper correct one when has been foundation laid: Moore v. State, 1937, 26 App. 607, 761; State, Ala. 164 So. Orr v. 1938, 462, 236 445; State, Ala. 183 1941, So. 240 Burks v. Ala. 587, 200 418; State, 1120, So. Rolen 191 (2d) v. Ark. 89 S. W. 614; State, 1937, 658, v. 129 543; Tomlinson Fla. 176 So. Schell 1945, v. State, 72 App. 804, Ga. 35 (2d) 325; S. E. Mitchell v. State, 1948, 202 247, (2d) 767; Ga. 42 E. Lee, S. 211 State v. N. 326, C. E. 234; Kelly 190 S. Commonwealth, 770, v. Ky. 259 (2d) 83 489; S. W. 1936, Brummett v. Commonwealth, 263 Ky. 460, (2d) 92 W. 787; 1942, S. Short v. Commonwealth, 291 Ky. 604, (2d) 177; 165 S. W. Daugherty Commonwealth, v. 1943, Ky. 147, (2d) 293 168 564; State, S. W. Hinton 175 v. 308, 762; Miss. 166 So. Green, 1946, v. 157, State La. (2d) So. 487; and Long, 630, State v. (2d) Mo. 80 S. W. 154.
Four and British states Columbia hold that such evidence is inadmissible but them some of are distinguishable. cases The Brott v. State, 395, case of 70 Neb. 97 N. 593, W. 63 L. R. A. 789, usually sustaining minority cited as Actually, view. however, court proper indicated that purpose for a under here, may facts such as received, we have evidence rejected sought but that case because it was such evi- prove independent
clence to without corrobora- crimes and this tion. "The The court that case said: conduct of was, perhaps, rightly received, in with an admission connection by Brott, made committed tending prove as that he evidence charged information; the crime but it also received was proof brought to the independent crimes which state ’’ jnry, attention admission did not relate. and to 104 N. People 411, 262 Ill. E. Pfanschmidt,
The case of v. minority adopting 1915A, leading Ann. Cas. case dog tracking a view. That was a in which horse case permitted stay being. dog rather than human not *36 crossroads; simply on be the trail at all times but worked the dog permitted tween to ride in auto the crossroads the by court, however, way in of dictum said mobile. The that case testimony that it in would not bloodhound case. consider supporting the upon Indiana is another relied as minor- state 92 ity 395, v. 174 Ind. N. E. State, view. In the ease of Stout 161, rejected 1912D, 37, evidence. The Ann. Cas. the court such by offered, however, evidence the state but the de- was not sought fendant that the bloodhound trailed another to show that person scene the crime. The court held from the of if the could or was inadmissible but indicated .that defendant person prove guilt of third had other evidence to the the offered have been might then the evidence admissible. 43, Reporter White,
In re Rex v.
37 British Columbia Law
opinion.
in a three
two
such evidence was held inadmissible
to
question.
ways
McClurg
gone
Iowa has
both
on
state of
881,
519,
65
368,
123
98 N.
R. A.
101
Brenton,
v.
W.
L.
Iowa
241,
Grba,
Here foundation before the court presence jury. without briefly of the It consisted following: George produced Talbot was as a witness who showed testimony purchased that he two bloodhounds question they age; they when were about seven weeks of were certified Association; American Kennel he had used dogs for following persons human scents and lost ever they old; they since average two months had run on the week; put three times a upon have been tracks after *37 they were hours and successfully; old followed them the dogs dogs are the official of the Foundation; Lost Persons Mr. explained Talbot in training detail the manner and method of dogs; training the the result dogs of the of these established perfect for them almost he record; they an said seldom see the person upon they laid; they whose tracks are have been trained they though so follow it can a trail even has been crisscrossed by persons purpose other for the misleading them; dogs of the years past two have placed upon the been the trail not persons persons every less than 35 lost and instance, found the except person by when the ceased make a getting to trail into automobile; by trail scent he said the bloodhounds them; lost tracks if track of a nothing the mean the
person they dog hunting crisscrosses, or man the which are scent; April 2nd he was follows the hottest on the afternoon of air of a dogs careful to hold the heads of in the means the them point place leash until he desired to reached the where he upon trail; placed upon point the the at the he them trail window, carefully guarded, been feet of the had south 49% so, dogs D were 2; marked on the exhibit as did the state’s they facing they as the scent house and soon obtained immediately away around in a direction swung and started house, following general from the course of the tracks above referred to. dogs general
The evidence shows in detail how the followed the some occupied course to the trailer house the defendant dogs so that when feet from the Bean house. The are trained they person tracking, they their they find are for whom look pleasure liking way reward in food exhibit question by jump- person. They such did this in the instance tails, ing defendant, licking hands, wagging upon the his their pleasure generally. attempted manifesting Defendant by testifying patted explain dogs that he the attitude dogs said, dog,” other witness who “Nice but no one of clear, how- respect. him in that It present was corroborated dogs, ex- was after had ever, pat if he did one of the that Mr. Talbot to him. It was hibited friendliness shown dogs use of a criminal interest in the has no financial expenses expenses his simply paid He and the ease. Forsyth. court, making trip from Hamilton The dogs in evidence, it was admissible. hearing determined that after jury. repeated in presence It then dogs supposed to have obtained suggestion that the in the area nearer the murderer somewhere scent may have been point people D and where other than window justified by the record. is not prior the arrival of house he arrived at Bean that when Mr. Talbot testified *38 dogs they had with the what sheriff he went to see over D on point which was marked start He was on. shown “got car and state’s exhibit 2. He went back to the then high and dogs brought two heads them out dropped or towards going them the the house on track towards the window.” He further testified: ** * “Q. you go point you where start, Can at the now dogs point lowered the D the State’s Exhibit on please exactly course, conduct, just detail and describe what exactly dogs very you what those did from the moment that dropped point? them on the scent you mean, Mr. Haynes, by dropping
“The Court: What do lowering? Haynes: taking Mr. I I dogs mean as have I promptly understood the witness wish to be corrected if I have it; I misunderstood have understood that dogs, when the bloodhounds, two habitually came out of the car that they kept up trained that he away their heads from the ground took them over to D point where scent begin as indicated to him the Sheriff Dowlin and at that point dropped them on the scent or on the track. Now am I right, you is that what did? A. right. That is ‘‘ way you What The Court: do mean ? Haynes: Mr. I cer- tainly up, don’t mean throw I dropped mean he Mr. them. Leavitt: it, He means them he laid he laid them on the scent.
“Q. You them scent, right? laid on the is that IA. turned put loose I of them and their heads down. Mr. Haynes: Is that satisfactory more you to Your Honor? may Well then strike drop put in turned them loose. right All Mr. Talbot, you go then will ahead now and
in detail describe the conduct of those from that moment when them turned loose on that track? A. they Well right trailing brought I started when them out I dropped— ‘‘Q. your dropped Use own words. I their heads on this just scent or little ahead the mark where was so that there somebody if wouldn’t no confusion had walked in back to look, dropped take a them little bit farther towards the
394' window on headed towards the track and *39 and they swung the and and back right house then around come ” * # * through come the fence a little field there. or across any It in the start- is clear me that if there deviation being ing point point exhibit the same the- marked D on 2, merely appeared person kneeled, what it was be where a had sugges- a matter of no real basis for inches that there is than from picked tion that the other dogs up the scent somewhere point than that D on some other scent marked the exhibit or point D. impression ground at person made in the who my It as a view is admissible circumstance is that this evidence crime, tending to that defendant was at the scene of show alone, Standing at or about time crime committed. was guilt prove the of course, this not sufficient evidence is out, ample other evi- defendant, pointed but as there above tending positive of the defendant including dence admission of the crime. him with the commission to connect by Supreme well stated purpose The such evidence was Commonwealth, Ky. 218, 204 181 Kentucky in Blair v. Court of 68, of the acts blood- 67,W. follows: “The evidence as S. may merely following as circum- a trail be received hounds against person whom towards corroborative evidence stantial or point being guilty of the commission other circumstances charged. the crime hedged evidence is therefore of this class of admission
“The way other and human safeguards in the abundant about with long rules are adhered to bloodhound testimony; as these and as any other class of circum- dangerous than is no more evidence stantial evidence.” regard the hounds as witnesses. erroneous notion
It is an 449; 103 295, Brown, v. 154 97 So. State Davis, La. v. State 1916D, 21, 1295. It R. actions 437, 88 E. L. S. S. C. be as a circumstance to considered evidence are admissible that dogs the trainer of defend The by jury. witness preserved rights protected are ant’s constitutional dogs. and trainer of the State owner right to cross-examine
395 N. E. Davis, Dickerson, 34, St. supra; v. State v. Ohio Ann. Cas. 969, Rep. 479, A., S., 341, 13 L. N. 122 Am. St. R. 1181. ewe well-known fact that analogous
The situation is hundred sheep many will her one out of reveal actions which absent as offspring, appearance, lambs all is her identical her. Com showing deception practiced upon here pare: 633; Wigmore Evidence, Ed., 177, p. sec. 3rd (2d) v. Grimsley, State Mont. 30 Pac. 85. point. argument dogs is beside are not infallible
As above not the noted it is the who is the trainer witness dogs. admissibility If fallibility is to test of of evi- be made the dence, system undergo change. then our of trials must a drastic
One other circumstance connection with evidence should One noted. witness testified as the demon- *40 apparent strated defendant, interest in the Mr. Talbot said: your “That’s Obviously man.” was but the conclusion of Mr. timely objection Talbot and had been made it should have been But general objection excluded. here a there was but all to evidence of of the action the bloodhounds and a motion to strike all relating the evidence thereto. specific
There objection was no to the three words above quoted. no specific There was motion strike to these words ex- cept as they scope general were included of the motion to strike all of the relating evidence to the action of the blood- hounds.
In State, 16, Patterson v. 191 67 997, Ala. So. 998, the court said: parts “It manifest at least stenographic of the report were relevant and admissible under the familiar rule for impeaching by showing statements, previously a witness made, contradictory testimony given hearing has or inves- tigation progress. parts Those the stenographic report testimony 'given by which tended to contradict the the defend- objection ants on were admissible. the trial The was addressed report If any part of the whole offered. it of was ad- missible, objection then was due to be Hill overruled. v.
396 Ala. State, State, 146 130 51, 621; Longmire Ala. 41 South. v. 66, separate 30 to duty South. 413. There on the court was no inadmissible.” parts report admissible 754, 753,
In
N. E.
State,
Timberman
140
261,
v.
107
St.
Ohio
question
objection
to
relating
same
to an
was considered as
part
certain
evidence,
part
of which was inadmissible
objection taken to
“However,
admissible. The court said:
question
general
was
was made
only.
application
No
strike
particular
question
out this
sentence. Part
entirely
above
competent,
only
italicized
the one sentence
objectionable.
attorney
de
duty
for the
It was the
testimony in
specific objection
incompetent
fendant
to make
properly
order
question
raise the
before the trial court. Since
done,
testimony
that was not
must
as if no
be considered
objection
upon
taking
record.” Other cases
the same
stood
Ry.
Hendricks,
&
48 Ark.
Louis,
view are: St.
I. M.
S.
Co. v.
621,
177,
783;
Mitchell,
350,
88 Tex.
31 W.
S. W.
Brown v.
S.
660,
64;
Lasecki,
10,
36 R. A.
90 Ohio St.
N. E.
L.
State v.
1915E, 202;
Corp.,
L.
v. General Motors
Ohio
R.
Wehrle
(2d) 702;
Clancy,
589,
E.
App., 80 N.
Gutzman v.
Wis.
1081,
744;
58 L. R. A.
Southern Bell Tel.
N. W.
Carmichael v.
333,
Co.,
Jur.,
&
162 N.
of the bloodhounds. majority opinion permit holds that it was error plaster introduce in evidence footprints state to casts of the scene the crime that it found near the was error to receive placed which defendant new overshoes on his feet evidence *41 footprints. sug- compared plaster easts of the It is proof that defendant the foot- was no made gested that there made that defendant the statement was evidence prints. There that whoever shot deceased It is clear the deceased. that he shot where the of the house shoot- tracks south made some have must by circumstantial evidence. may shown occurred; be ing facts in 20 question is stated Am. governing this rule general The may “A Jur., p. witness Evidence, 330, sec. as follows: upon found testify tracks prosecution a criminal as to human location, size, ground place a crime and as to at the them. any about peculiarity may or have observed that at the Similarly, of tracks description and measurements by the worn crime, with the shoes correspond scene of a which ’’ evidence, competent. are defendant and have been introduced 369, 372, 8 12, 85 Fuller, 34 Mont. Pac. The court in v. State ,be controversy no A., S., 762, R. declared: “There can L. N. marks or tokens or other general footprints to the that rule may admitted to upon crime place found near the of the guilty person, identify him as it and connect the accused with behind evidences to show he left such if the evidence tends that him.” description size of merely giving
This was a means of comparative proper. The fact purposes the tracks many may persons fit that the and doubtless would overshoes goes say simply weight, of "Werewe to the evidence. species inadmissible, I think its admission evidence juror any error. would harmless It seems unbelievable guilty have been find of murder because influenced to defendant plaster the introduction of the overshoes or casts evidence. objection noted that defendant made no It should be too put procedure adopted, by having him the overshoes on in the given jury, testimony and to him that presence objection him, testimony fit made to nor was there plaster made that the fit the and the demonstration overshoes only objection east tracks. The made was to the of the introduc- comparisons after these tion of the overshoes themselves had general long been made and the motion strike evidence objection. gone after it had in without The defendant himself testify plaster did fit the cast. did not the overshoe not following: record shows overshoes, Very well, you one State’s now hand it to State’s No. and ask to fit fit Exhibit *42 (Witness you Exhibit 10No. as to the heel and see what find. putting east) overshoe Similar. fit, Seems to it? A. Well did have doesn’t
trouble, pair would Haynes, finding Mr. overshoes fit those tracks?” objection upon
No comparison was made defendant predicate prejudicial he could as found in the error majority opinion.
If plaster majority the overshoe not fit does cast as the opinion (which concede) states I do not then that fact obvious the jury as to the I members of this court and think it is rather any right far fetched conclude that of defendant prejudiced by the admission of if such evidence even should been have excluded. judgment
I think the should affirmed.
MR. JUSTICE METCALF: foregoing concur in the dissenting opinion of Mr. Justice
Angstman. IRVINE,
STATE v. DISTRICT COURT OF ex rel. Relator, FOURTH JUDICIAL DIST. for LAKE COUNTY, Respondents. al.,
et No. 9139. Submitted November 1951. Decided December 20, 1951. (2d) 239 Pac. 272.