Pedigo v. Commonwealth , 103 Ky. 41 ( 1898 )

JUDGE DuRELUE

delivered the- opinion of the court.

Appellant was indicted jointly with Worth Wilson for burning the stock barn of L. W. Preston, on March 10, 1897, and, having been given a separate trial, was found guilty and sentenced to three years confinement in the penitentiary.

Upon the trial, Preston testified that, at ten minutes of nine in the evening, he discovered the fire coming through)1 the barn from the .southwest corner; and that he thereupon “telegraphed to- Neighbors, at Elizabethtown, and got his bloodhound, that arrived the next day at noon, and carried him to the rear of the southwest corner of the barn; and the dog took a track and went.in a south direction to the lane, and went down the lane three panels, and crossed the fence through the place of Spencer into the street, and then up the street toward the dormitory, and up to the house of Nan Tunstel’s, opposite the -dormitory. The dog was then taken to the alley that leads out of the street, east, from the one oni which the dormitory is situated; and the dog took a track then, and followed it up that street through the plank fence through Mr. Joe Smith’s, following a path into the Knob road, out that road to Dolph Depp’s gate, crossed the fence in a low- place near the gate, and then through the swamp in the field toward my barn that was burned.”

After testifying to some other matters, the witness further stated: “Next day after the fire, witness-, following the -dog, saw- tracks going through Spencer’s- field; the tracks w-ere about four feet apart, and were the tracks of one person, and looked like person w-as running, and dog followed that track. Witness staid from fifty to one hundred yards behind the dog trying to keep the crowd back.” This was all the testimony in regard to the dog.

The barn was totally destroyed, together with a lot of horses and other stock and property.

It appear* that the dormitory spoken of w-as- situated about fire hundred yards toward the center of town from Preston’s barn, and w-as a tenement occupied by a large number of families and individuals, many of whom were of bad repute. Immediately -opposite the dormitory, on Front ■ street, was the house, of Nan Tunstel, which appears to have been a house of ill-fame. It is admitted that both 'appellant and his co-defendant were at the dormitory and the Tunstel house before and after the fire, in company with Fannie Hogan, a lewd woman, whom appellant was in the habit of visiting, and with Pearl Crumpton, another woman of the same class whom Wilson afterwards married.

Lula Simmons, another inmate of the dormitory, testified-that, at “about good dark,” on the evening of the fire, she was getting some mullein- for use as medicine in the field hack of Preston’s barn; that she was just behind the barn,, and about seventy-five yards from it, andjvhen she started back she saw appellant come out of the back door and shut, the door, and he said to her, “Hello! Lula; you will see a hell of a fire here in a little while;” that he then got over the fence back of the barn, staggering and apparently drunk, and came to where she was; that they walked together out of the field, through Depp’s field (which lay in the direction of the dormitory from Preston’s), down the lane back of Depp’s house that leads down to the pike; that -she got over the fence and went on through the field, but that appellant went toward the pike, while she went on back of Spencer’s house, through his stable lot, and up the road to the dormitory. As nearly as can be ascertained from the bill of exceptions (which is quite indefinite as to the locations), the track followed by the dog coincides in some respects, though not in all, with that taken by appellant, according to the statement of the Simmons woman, so far as she claims to have seen hi-s movements.

Two other witnesses testified to having seen, a short time-before the fire, two unidentified men at the point in the lane where the dog was set to trailing the second time, and from which point the dog went in the direction of the 'barn. These witnesses knew both appellant and Wilson, but did not recognize either of the men.

Alice Cass, another inmate of the dormitory, was permitted to testify that, about three-quarters of an hour before the fire, Wilson came to her room and borrowed some matches; that some one1 was on the porch with him, but she did not know who it was. There was some testimony of statements by appellant after the fire tending to cast some suspicion upon him.

Preston had testified on re-direct examination that he sawt Wilson in Louisville, told him there was a reward of $250 offered for the man who burned the barn, and that Wilson could have the reward if he would help to get the man, to which Wilson replied, “I am a poor fellow, and hard up, but I would hate to tell who it was, for Walter Pedigo is a good friend of mine.” This testimony, of course, should not have been admitted, and was properly excluded from the jury on the day following.

The defense relied on was an alibi. The two women, Fannie Hogan and Pearl Crumpton, testified that appellant and his co-defendant, Wilson, were in their company all the ■evening until the time of the fire, and there was other corroborative testimony to the same effect.

Upon cross examination, the witness, Hogan, was asked 'if her husband (she being a married woman), had not said to her in Louisville, in the presence of Policeman Hessian, that she had left him and taken up with “a damned barn-burner,” and if she had not replied that her husband would beep on until he got her connected with the barn burning; if Hessian did not ask her who it was that fell over the fence and hurt themselives, and if she had not said “It was not me, as we run;” and if she had not further said if she talked she would get some one into trouble. Having responded in the negative, Hessian was permitted to contradict her and state that the conversation indicated had taken place. She was further asked if she had not told Preston, in the presence of Bailey, that she’would tell him what she knew about the fire if he would not ask liei anything about Walter Pedigo, and if she had not told Preston one of the Reynolds boys burned it and got five dollars for it. This was answered in the negative, and Bailey was permitted to testify in regard to the conversation indicated, the court in regard to this testimony — and this only — cautioning the jury that the evidence of Bailey was to be considered only as affecting the credibility of the witness, Hogan.

From the statement of facts it is evident that the most important question is, whether the testimony in regard to the dog and his actions was competent. On behalf of the Commonwealth, it was urged that this testimony was admissible for what it was worth as one of the circumstances pointing to the guilt of appellant. On the other hand, it is insisted with great earnestness that, while evidence concerning the tracking of human beings by dogs has been sometimes acted upon by mobs, it has never been admitted as competent in the courts of any State except one, and in that one under conditions which did not exist in this case; that if admissible at all, it is admissible solely upon the ground that it is expert testimony, and that no evidence was offered or admitted that the dog in question was qualified, or had been trained to track human beings, or even that he was in fact a bloodhound.

The only cases upon.this subject to which we have been . referred, or which we have been able to find, arose in Alabama. In the case of Hodge v. The State (13 Sou., 385), upon a trial for murder, it appeared that on the night of the’killing, just after’ it was done, several witnesses went to the place and discovered in close proximity to the house, man-tracks. The tracks were sufficiently marked to be easily followed, and were followed by several of the witnesses up to, or very near to, the house of defendant. One of the witnesses, while on the stand, was asked the following question: If he had, at the time he was searching for tracks, a trained dog for tracking a man? Against objection, the witness was permitted to state that he did own such a dog; that when the tracks were discovered near the house of deceased he got his dog and put him on the tracks, and that the dog, after taking the trail, followed the tracks and went to defendant’® house, being followed by the witness. Said the court in that case:

“It is common knowledge that dogs may be trained to follow the tracks of a human being with considerable certainty and accuracy. The evidence in this case showed! that a dog thus trained was, within a very short time after the homicide, put upon the tracks of the person towards whom all the circumstances strongly pointed as the guilty agent, and that the dog, as if following these tracks, or ‘trailing,’ went to the house of the defendant.”

There was other evidence showing that measurements were made of the tracks at various points along the route, and they were identified at each point as having been made by the same shoes as were the tracks at the place of the murder; and it was held that — . :

“ . . . the fact that the dog, trained to track men as shown in the testimony, was put on the tracks at the scene of the homicide, and, ‘taking the trail,’ so to speak, went thence to defendant’s house, where he, the defendant, is shown to have been that night after the killing, was competent to go to the jury for consideration by them in connection with all the other evidence as a circumstance tending to connect the defendant with the crime.”

In a subsequent case in the same court, (Simpson v. State, 20 Sou., 573), upon a trial for arson, there was. evidence introduced tending to show that the defendant was tracked by bloodhounds which had been put upon his track a short time after the building was burned. The owner of the dogs (which were known as bloodhounds) testified that he had trained them to track human beings, and that they would not leave the track of a person, after they had been once put upon it, to follow another track. On cross-examination, an attempt was made to weaken the effect of this testimony by asking the trainer and owner of the dogs if he had not trained certain bloodhounds kept at another place, of the same stock and breed as the dogs concerning which he had testified, close on to two years old, and if he did not know that they had recently been put on a human track, and had quit the track and gone.off and killed a sheep. In this •case the court held:

“The court properly excluded from the jury the proposed evidence as to two bloodhounds, of the same breed of those •employed to track the supposed criminal in this case, and trained by the same man, being put upon the trail of a human being, and leaving it to trail a sheep, which they overhauled and killed. The test by comparison was not sufficiently certain to determine tbe reliability of tbe dogs employed here by reference to the qualities of the other dogs.”

It is difficult to lay down a general rule as to the introduction of testimony of this kind. It is matter of common knowledge, of which courts are authorized to take notice, that dogs of some varieties (as the bloodhound, foxhound, pointer and' setter) are remarkable for the acuteness of their sense of smell, and for their power of discrimination between the track they are first laid on and others which may cross it; but it is also> matter of common knowledge that all dogs do not possess this power in the same degree, and that some dogs of purest pedigree prove worthless upon trial. It is stated in the Encyclopedia Britannica, title “Dog,” that “The bloodhound, regarded by many as the original stock from which -all the other varieties of British hounds have been derived, is now rarely to be met with in entire purity. Its distinguishing featured are long, smooth and pendulous ears, from eight to nine inches in length, full muzzle, broad breast, muscular limbs, and a deep sonorous voice. The prevailing color is a reddish tan, darkening towards the upper part, and often varied with large black spots. It stands about twenty-eight inches high.” It is stated in Webster that the bloodhound was formerly used for pursuing runaway slaves, and that “other varieties of dog are often used for the same purpose and go by the same name. The Cuban bloodhound is said to be a variety of the mastiff.”

After a careful consideration of this case by the whole court, we think it may be safely laid down that, in order to make such testimony competent, even when it is shown that the dog is of pure blood and of a, stock characterized by acute-* ness of scent and power of discrimination, it must also he established that the dog in question is possessed of these qualities, and has been trained or tested in their exercise in ■the tracking of human beings, and that these facts must appear from the testimony of some person who has personal knowledge thereof. .We think it must also appear that the dog so trained and tested was laid on the trail whether visible or not, concerning which, testimony has been admitted at a point where the circumstances tend clearly to show that the guilty party had been, or upon a track which such, circumstances indicate to have been made by him: When so indicated, testimony as to trailing, by a bloodhound may be permitted to go to the jury for what it is worth as one of the circumstances which may tend to connect the defendant with the crime of which he is accused. When not so* indicated, the trial court should exclude the entire testimony in that regard from the jury. It is well known that the exercise of a. mysterious power not' possessed by human beings begets in the minds of many people a superstitious! ■awe, like that inspired by the bleeding of a corpse at the touch of the supposed murderer, and that they see in suebl an exhibition a direct interposition of divine providence in aid of human justice. The very name by which the animal is called has a direct. ■ tendency to enhance the impressiveness of the performance, and it would, be dangerous in the extreme to permit the introduction of such testimony in a, criminal case under conditions which did not fully justify its; consideration as a circumstance tending to connect the accused with the crime.

In this case there was no testimony showing that the dog had been trained or tested.

As the case must therefore be reversed and sent back for a new trial, we will consider the other alleged errors for which a reversal is sought.

The testimony of Alice Cass as to the borrowing of the matches seems to us, while not particularly material, to be 'hardly sufficiently connected with this appellant, as there 'is no direct testimony to show that appellant was in Wilson’s! company at the time; and this the more, as the indictment does not charge conspiracy.

As to the questions asked on crosis-examinatioin of Fannie Hogan, the answers to which various witnesses for the 'Commonwealth were permitted, against objection, to contradict, we are of opinion that the 'statements proved by 'Hessian, Preston and Bailey were not 'contradictory of, or inconsistent with, her testimony in chief upon any material matters, and were therefore incompetent. The opinion of the witness Hogan’s husband that appellant was a barn-burner was clearly incompetent. (Kennedy v. Com., 14 Bush, 357; Loving v. Com., 80 Ky., 511; Stephens Dig. Law, Ev., see A. & E. Enel., 7, page 109.) And we think the other -statements of these witnesses in contradiction of the (witness Hogan were as to matters collateral to the testimony in chief of the witness, , and therefore irrelevant.

For the reasons! stated, the judgment is reversed' and the cause remanded, with directions to award appellant a new trial, and for further proceedings consistent with this opinion. '

Judge Guffy dissents from so much of this opinion as holds testimony in regard to the trailing by the dog admissible under any circumstances.