Buck v. State

• Decision Date: 26 May 1943
• Docket Number: A--10172.
• Parties: BUCK v. STATE.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

138 P.2d 115

77 Okla.Crim. 17

BUCK v. STATE.

No. A--10172.

Court of Criminal Appeals of Oklahoma

May 26, 1943

Syllabus by the Court.

1. Evidence of the trailing of human beings by bloodhounds is admissible as a circumstance to corroborate other testimony offered by the State.

2. The bloodhound in question must be shown to have been trained to follow human beings by their tracks and to have been tested as to its accuracy in trailing upon one or more occasions.

3. The evidence of the acts of bloodhounds in following a trail may be received merely as a circumstance or corroborating evidence against a person toward whom other circumstances point as being guilty of the commission of the crime charged.

4. Preliminary to the introduction of this evidence, the court should hear the testimony of witnesses, preferably out of the presence of the jury, as to the blood, training and experience of the dog, and determine as a matter of law whether it is such as to permit its introduction before the jury.

5. It should be shown 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 has been or upon a track which such circumstances indicate has been made by him.

6. The verdict of a jury based partially upon circumstantial evidence will not be set aside unless the court finds that the evidence as a whole is insufficient to justify the verdict rendered.

Appeal from District Court, Okmulgee County; Arthur Cochran, Judge.

G. R Buck was convicted of arson, and he appeals.

Affirmed.

E. M Carter and D. E. Ashmore, both of Okmulgee, for plaintiff in error.

Mac Q Williamson, Atty. Gen., Jess L. Pullen, Asst. Atty. Gen., and Jack Pitchford, Co. Atty., of Okmulgee, for defendant in error.

BAREFOOT Judge.

Defendant G. R. Buck, was charged in the District Court of Okmulgee County with the crime of arson, was tried, convicted and sentenced to serve a term of two years in the State Penitentiary, and has appealed.

The only contention presented in the brief of defendant is that the evidence is insufficient to sustain the judgment and sentence, and that the court erred in refusing to direct a verdict of not guilty.

This case may be said to rest almost wholly upon circumstantial evidence. It presents to this Court for the first time the question of the admissibility in evidence of the trailing of one by bloodhounds. We find that this question has heretofore been presented to the highest appellate courts of many states, and that some consideration has been given thereto by textbook writers. However, this Court has never been called upon to consider the question, although the use of bloodhounds at the State Penitentiary has been in vogue for many years.

An investigation of the authorities has been most interesting and profitable. The earliest case in this country in which consideration was given to the question was that of Hodge v. State, 98 Ala. 10, 13 So. 385, 39 Am.St.Rep. 17. In that case the death penalty was upheld, and the evidence of tracking by the dog to defendant's home was sustained as competent evidence. Since this case in 1893, many courts have passed upon the question, and by the great weight of authority it has been held that the evidence is admissible under certain rules and conditions, as will be hereinafter stated.

Among the states upholding the rule are Alabama, Florida, Iowa, Kansas, Kentucky, North Carolina, South Carolina, New York, Missouri, Ohio, Texas, Mississippi, Georgia, Tennessee, Arkansas and Louisiana; and the following texts are here cited: 16 C.J. 564; 8 R.C.L. 177, 184; 22 C.J.S. Criminal Law, § 646, p. 988; and Elliott on Evidence.

The states, some of which recognize that in some cases the evidence might be admissible, yet refuse to follow the rule are Nebraska, Illinois and Indiana, and one case from Iowa. Brott v. State, 70 Neb. 395, 97 N.W. 593, 63 L.R.A. 789; People v. Pfanschmidt, 262 Ill. 411, 104 N.E. 804, Ann.Cas.1915A, 1171; Ruse v. State, 186 Ind. 237, 115 N.E. 778, L.R.A.1917E, 726; State v. Grba, 196 Iowa 241, 194 N.W. 250.

In the early case of State v. Thomas Hall, 4 Ohio Dec. 147, a history of the bloodhound is given as follows:

"It is a matter of common knowledge, and therefore a matter of which courts will take notice, that the breed of dogs known as bloodhounds is possessed of a high degree of intelligence, and acuteness of scent, and may be trained to follow human tracks with considerable certainty and success, if put upon a recent trail. In Chambers' Encyc., under the title 'Bloodhound,' it is said of this dog, that 'it is remarkable for its exquisite scent and for its great sagacity and perseverance in tracking any object to the pursuit of which it has been trained;' that 'it has been frequently used for the pursuit of felons and deer-slayers, and, in America, for the capture of fugitive slaves;' and the writer refers to the use of these dogs in border warfare, and to their importation 'into Jamaica in 1796 to be used in suppressing the Maroon insurrection, but the terror occasioned by their arrival produced the effect without their actual employment.' The Encyc. Britannica (9th Ed.) under the title 'Dog,' bears this testimony to the wellknown traits of this animal: 'The bloodhound is remarkable for its acuteness of scent, its discrimination in keeping to the particular scent on which it is first laid, and the intelligence and pertinacity with which it pursues its object to a successful issue. These qualities have been taken advantage of not only in the chase, but also in the pursuit of felons and fugitives of every kind. According to Strabo, these dogs were used in an attack upon the Gauls. In the clan feuds of the Scottish Highlands, and in the frequent wars between England and Scotland, they were regularly employed in tracking fugitive warriors, and were thus employed, according to early chroniclers, in pursuit of Wallace and Bruce. The former is said to have put the hound off the scent by killing a suspected follower, on whose corpse the hound stood. For a similar purpose captives were often killed. Bruce is said to have baffled his dogged pursuer as effectually, though less cruelly, by wading some distance down stream, and then ascending a tree by a branch which overhung the water and thus breaking the scent. In the histories of border feuds these dogs constantly appear as employed in the pursuit of enemies, and the renown of the warrior was great, who,

'By wily turns and desperate bounds, Had baffled Percy's best bloodhounds.'

In suppressing the Irish rebellion in the time of Queen Elizabeth, the Earl of Essex had, it is said, 800 of these animals accompanying the army. ***

Both history, therefore, and natural history testify to the exceptional keenness of scent and capacity for training of this variety of hound. Whatever may be said of the wisdom or humanity of resorting to this means of detecting and securing the apprehension of criminals, there can be no doubt, that, where a well trained dog is set upon a recent track and follows it, in the usual manner of such dogs in following a trail, up to the person or home of the accused, these facts may, on the plain principles governing circumstantial evidence, be shown as tending to connect him with the crime charged. It was so held in the case of Hodge v. State, 98 Ala. 10 , 39 Am.St.Rep. 17, which is the only case I have found directly in point.

Of course in such cases full opportunity should be given to inquire into the breeding, training and testing of the dog, and to all the circumstances attending the trailing in the case on trial, and to the manner in which the dog then acted and was handled by the person having it in charge. The weight to be given to the tracking as evidence against the accused will depend largely upon these matters."

Also in the case of Blair v. Commonwealth, 181 Ky. 218, 204 S.W. 67, 68, in which a beautiful tribute is paid to the dog, where it is said:

"It is next insisted that the court should have sustained appellant's objection to the testimony relating to the trailing of Blair and Crump by two bloodhounds immediately after the offense was committed. The former opinion reiterated the rule upon that subject first announced in this state in 1898, in Pedigo v. Commonwealth, 103 Ky. 41, 44 S.W. 143, 19 Ky.Law Rep. 1723, 42 L.R.A. 432 82 Am.St.Rep. 566, holding such testimony to be competent when properly guarded. The rule may now be said to be thoroughly established in this jurisdiction. Denham v. Commonwealth, 119 Ky. 508, 84 S.W. 538, 27 Ky.Law Rep. 171; Sprouse v. Commonwealth, 132 Ky. 269, 116 S.W. 344. And it cannot be said that the doctrine is wholly a novel one.

If we may credit Sir Walter Scott, such evidence was looked upon with favor as early as the twelfth century. In the Talisman it is related that in the joint crusade of Richard I of England and Phillip II of France, Roswell, the hound, pulled from the saddle Conrade, Marquis of Montserrat, thus mutely accusing him of the theft of the banner of England. Phillip defended the Marquis with the remark:

'Surely the word of a knight and a prince should bear him out against the barking of a cur.'

To which Richard replied:

'Royal brother, recollect that the Almighty who gave the dog to be companion of our pleasures and our toils, both invested him with a nature noble and incapable of deceit. He forgets neither friend nor foe; remembers, and with accuracy, both benefit and injury. He hath a share of man's intelligence, but no share of man's falsehood. You may bribe a soldier to slay a man with his sword, or a witness to take life by false accusation; but you cannot make a hound tear his

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