Harris v. State ( 1926 )

^* Corpus Juris-Cyc References: Criminal Law, 16CJ, p. 564, n. 47, 48; p. 565, n. 58, 59, 60, 63; 17CJ, p. 330, n. 34; Evidence of trailing by bloodhounds, see notes in 42 L.R.A. 432; 35 L.R.A. (N.S.) 870; L.R.A. 1917E, 730. This is an appeal from a conviction of murder followed by a life sentence to the penitentiary. The deceased was assassinated while asleep in his room by a shot fired through a window thereof. No one saw the person who fired the shot, and the conviction rests wholly on circumstantial evidence. One of the circumstances on which the conviction rests, and the only one necessary to be here set forth, was the conduct of the two dogs who are said to have followed a track from near the window through which the deceased was shot to the appellant's home, and to have identified the appellant as the person whose track they followed. The killing occurred at about eight o'clock at night, and quite a crowd seems to have shortly gathered at the deceased's home. Between 9:30 and ten o'clock a constable arrived on the scene, caused the crowd to depart from the vicinity of the window through which the deceased was shot, and thereafter until the arrival of the dogs next morning guarded a track in the flower bed, the toe of which pointed toward the window through which the deceased was shot. It seems from the evidence that the crowd had gathered and stood near this window before the track was discovered, and it does not appear that the track was not made by a member of the crowd, but there were circumstances which tended to show that the shot which killed the deceased was fired from about where the track was. When the dogs were shown the track, they tracked therefrom through the gate of the deceased's yard for a short distance, and then back to the scene of the killing, and from there again through the gate, and partly along a public road to the door of the appellant's residence about a half mile from where the killing occurred. When the dogs and the persons having them in charge arrived at this door, the appellant opened it and admitted them, whereupon one of the dogs looked at him and barked twice, thereby, according to their owner who accompanied them, indicating that he was the man whose track they had followed.

This evidence was admitted over the appellant's objection, the ground of which was that a proper predicate for the admission of the evidence had not been laid. For the purpose of this discussion we will assume that the track which the dogs tracked to the appellant was sufficiently identified as having been made by the person who fired the shot which killed the deceased.

The fact that a bloodhound, when shown a track at or near the place where the person who committed the crime must have stood when committing it, tracked definitely therefrom to the accused is a circumstance indicating that the crime was probably committed by the accused. "Nevertheless, in actual usage, this evidence is apt to be highly misleading, to the danger of innocent men. Amidst the popular excitement attendant on a murder and the chase of the suspect, all the facts upon which the trustworthiness of the inference rests are apt to be distorted in the testimony. Moreover, the very limited nature of the inference possible is apt to be over-estimated — a consequence dangerous when the jurors are moved by local prejudice." 1 Wigmore on Evidence (2 Ed.), section 177. Consequently, such evidence is admissible only after preliminary proof that the bloodhound which tracked to the accused is pure bred, has been well trained to track human beings, has been well tested by tracking other men and found reliable, and that the track from which the bloodhound tracked to the accused was made by the person who committed the crime. Spears v. State, 92 Miss. 613, 46 So. 166, 16 L.R.A. (N.S.) 285; 1 Wigmore on Evidence, supra, where the authorities bearing hereon are collated; Underhill on Criminal Evidence (2 Ed.), section 374a.

The evidence here fails to meet this test, for it does not appear therefrom: (1) That the bloodhounds were pure bred and (2) had been tested by tracking other men and found reliable. The statement by the owner of the dogs that they were subject to registration proves nothing as to the purity of their breed, for, in addition to the opinion feature thereof, it does not appear what the qualifications for the registration of bloodhounds are, nor what the character and authority is of the person or board that determines the right of a bloodhound to be registered and keeps the record thereof. One, and probably the only sure, test of the reliability of a bloodhound in tracking human beings is to put it repeatedly in a track known to have been made by a particular person, and see if it will track therefrom to that person. These tests should be so made as to demonstrate that the dog will continue to follow the same track and not leave it for another.

For the error in admitting this evidence, the judgment of the court below will be reversed and the cause remanded.

Reversed and remanded.