Allen v. State

THOMAS, J.

— The defendant was tried and convicted on an indictment charging him with the offense of burglary. Only three questions are urged on this appeal; two relating to the action of the trial court in the admission of certain evidence offered by the state, and the other relating to its refusal to give a written charge requested by defendant.

It is insisted, in the first place, that the court erred in permitting the state to prove the alleged trailing of the dogs, on the next day after the burglary, of defendant’s supposed tracks from the scene of the burglary, for a distance of several miles, to places where he was alleged to have gone after the commission of the burglary. The basis of the insistence is that the state nowhere proved, or undertook to prove, that these dogs which did the trailing were ever in any wise trained or were qualified to trail the tracks of human beings.— Gallant v. State, 167 Ala. 65, 52 South. 739; Hargrove v. State, 147 Ala. 98, 41 South. 972, 119 Am. St. Rep. 60, 10 Ann. Cas. 1126; Richardson v. State, 145 Ala. 46, 41 South. 82, 8 Ann. Cas. 108; Simpson v. State, 111 Ala. 8, 20 South. 572; Hodge v. State, 98 Ala. 10, 13 South. 385, 39 Am. St. Rep. 17; Hadnot v. State, 3 Ala. App. 103, 57 South. 383.

Such preliminary proof should, have been made , (authorities supra) as a predicate for the introduction of the evidence of the trailing done by the dogs; but the defendant is not in a position to complain of its not being made for the reason that he failed to object to the questions eliciting or seeking to elicit the evidence of the trailing. — Downey v. State, 115 Ala. 108, 22 South. 479; Ellis v. State, 105 Ala. 72, 17 South. 119; Washington v. State, 106 Ala. 58, 17 South. 546.

Of course, if a state’s witness volunteers objectionable evidence, or states it in answer to a question not calculated to call it forth, then such evidence could not possibly be anticipated by defendant’s counsel and could not therefore be objected to before the witness had stated it. Hence, an objection then made would be in time, and save the point sought to be raised. When such is the case, however, the bill of exceptions should affirmatively so show; otherwise, when the testimony of the witness appears, as here, in narrative form without the questions calling it forth, and in the course of the narrative it is stated in a parenthetical way that defendant moved to exclude certain portions, setting them out, of the witness’ testimony, it will be presumed in favor of the ruling of the trial court, the record not showing to the contrary, that the objectionable, testimony was responsive to a question from the solicitor that called it forth. — Downey v. State, 115 Ala. 108, 22 South. 479. It is well settled that when testimony responsive to questions calling for it is allowed to go in without objections to the questions, the trial court cannot be put in error for overruling a subsequent motion to exclude it; for the reason that in such a case the motion to exclude is addressed solely to the discretion of the trial court.— Wright v. State, 108 Ala. 60, 18 South. 941; Billingsley v. State, 96 Ala. 126, 11 South. 409; McCalman v. State, 96 Ala. 98, 11 South. 408.

It appeared that an iron safe in the store burglarizéd was blown open, and that there was taken from the safe on the night of the burglary a stamp book, containing 12 two-cent postage stamps, together -with other papers; that some of these papers were found in the woods along the trail of the dogs, and that others, positively identified, were found at the house of Mary Smith; to which the dogs also Avent in running the trail, and AAdio SAVore that these papers AA'ere left at her house on the night of the burglary by defendant and his codefendant, George HaAvkins. From her house the dogs folloAved the trail to the house of George HaAvkins, Avhere was found a stamp book in the cottonseed, corresponding in description Avith that missed from the safe that was broken open. The defendant moved to exclude the evidence as to the finding of the stamp book, on the theory that the state’s witnesses could not positively identify it as the stamp book stolen. Their testimony that it Avas the same in kind and appearance as that stolen, coupled Avith the other facts and circumstances detailed, AAdiich tended further to its identification, was sufficient to warrant a submission of the question to the jury as to Avhether or not it Avas the same stamp hook as that stolen. Besides, even if the evidence in this particular Aims not sufficient for that purpose, the defendant is in no position to complain, for the same reason as hereinbe-fore pointed out in considering the matter of the qualifications of the dogs to do the trailing. He raises the point only by a motion to exclude the evidence.

The court did not err in refusing the following charge requested by defendant, to wit: “The court charges the jury, if they believe from the evidence that the defendant has established to the satisfaction of the jury a good character, such good character may alone engender a reasonable doubt of defendant’s guilt, and authorize the jury to acquit the defendant.” The charge is not a correct exposition of the law, in that it ignores the fact that the law requires the jury, in considering the good character of a defendant, to do so along with the other evidence in the case. — Johnson v. State, 94 Ala. 42, 10 South. 667; Bryant v. State, 116 Ala. 445, 23 South. 40.

The record raises one other point, but it is not insisted on in brief, and we are of opinion that it is Avith-out merit. After the party Avhose store was burglarized had stated that he remembered what Avas in the safe that was bloAvn open, the solicitor exhibited to him a book — Avhat kind the hill of exception does not say— and asked the witness this question, to Avhich objection Avas made by defendant, to wit: “Among other things in that safe was this book in there?” The court overruled the objection, and the witness answered, “Yes, sir.” This was all the evidence in the case, so far as the bill of exceptions shoAvs, in any way pertaining to that particular book, Avhich it does not appear Avas ever even introduced in evidence. Assuming that the book referred to Avas not the stamp book hereinbefore mentioned, Ave are unable to see how the mere asking and an-SAvering of the question stated about an immaterial book not offered in eAddence could have in any way prejudiced the rights of defendant, and we are satisfied that it did not injure his case. Assuming, on the other hand, that the book referred to was the stamp book, it Avas material evidence, and it Avas entirely competent for the state to make this proof, as Avell as the other proof relative to it, Avhich Avas before discussed.

We find no error in the record, and the judgment of conviction is affirmed.

Affirmed.