Carter v. State

• Citation: 64 So. 215,106 Miss. 507
• Court: United States State Supreme Court of Mississippi
• Decision Date: 09 February 1913
• Parties: WILL CARTER v. STATE

64 So. 215

106 Miss. 507

WILL CARTER v. STATE

Supreme Court of Mississippi

February 9, 1913

October 1913

APPEAL from the circuit court of Desoto county, HON. N. A. TAYLOR Judge.

Will Carter was convicted of burglary and appeals.

The facts are fully stated in the opinion of the court.

Motion reversed, and appellant discharge.

R. F B. Logan, for appellant.

The appellant, Will Carter, was indicted by the grand jury of DeSoto county, Mississippi, in February, 1913, for burglary in the breaking and entering and stealing money from S. T Stewart's storehouse located in said county. The said storehouse was broken open before nine-thirty o'clock p m. December 26, 1912. The bloodhounds which trailed or tracked appellant to his cabin home arrived on the scene between two o'clock and five o'clock Saturday morning, December 28, 1912, about thirty-three hours after the storehouse was broken open. The ground was soft at the time the crime was committed and had thawed once and frozen twice before the dogs arrived on the scene. The bloodhound testimony is the only evidence that connects the appellant with the crime charged. No evidence whatever, except the bloodhound evidence was introduced to connect this defendant with the crime charged. He bore a good reputation for honesty in the community in which he lived, and which was testified to by a number of reputable citizens and his reputation for honesty was not impeached. We contend that the court erred in overruling the motion of the defendant to exclude the testimony of the state and discharge the defendant.

State v. Spivey, 151 N.C. 676, 65 S.E. 995, and in note, second column, 35 L. R. A. (N. S.) 872, we find this language, "It is held that evidence of the conduct of a bloodhound used by a witness for the state the day after the homicide, in tracking the defendant is not substantive, but corroborative, and is admissible after the state has paved the way for its admissibility by the introduction of other evidence as to the identity of the tracks." In the case at bar the evidence of the conduct of bloodhounds was certainly considered as substantiative as it was the only evidence introduced on the trial to connect appellant with the crime charged.

Spears v. State, 92 Miss. 613, announces the same doctrine. See middle of page 620, "The trained bloodhounds tracked defendant to his home and identified him in their peculiar way, and a track was found along the way leading to the house which corresponded to a shoe shown to have been worn at certain times by the defendant."

There was absolutely no evidence introduced in the case at bar to connect appellant with the crime charged except bloodhound testimony. Not even a shadow rested upon his reputation for honesty; on the contrary he had a good reputation in the community in which he lived. See testimony of W. H. Allen, page 50; W. McNeely, page 53; W. F. Sage, page 54; C. E. Bowen, page 59; R. H. Elder, page 60; and V. C. Langston, page 60 of the record. State v. Moore, 129 N.C. 479, 55 L. R. A. 96, see first column, 55 L. R. A., p. 98, "We do not base our opinion upon the ground that the dog, being an animal of instinct, and not possessed of reason and ergo, his conduct would not be a circumstance to be considered in connecting a person with an act or in corroborating a statement made by a witness, but upon the ground that we fail to see that it was a circumstance which would tend to connect the defendants with the larceny, or that it in any way corroborated the testimony of the witness Rountree."

Top of page 99, first column, same book we find this language: "This is a novel feature of evidence, and is attended with some danger, and is calculated to excite the superstition of some people that the exercise of that instinct, not possessed by human beings, is a supernatural agency in the aid of human justice, to which too great importance may be attached, and against which courts will have to guard when the occasion arises." Brott v. State, 70 Neb. 395, 63 L. R. A. 789, 97 N.W. 593; in this case bloodhound evidence is rejected.

Baum v. State, 6 Ohio C. C. (N. S.), 515, 27 Ohio C. C. 569, and in note in 35 L. R. A. (N. S.), second column, page 874, we find this language: "Second, the evidence of the acts of bloodhounds in following a trail may be received merely as cumulative or corroborative evidence against the person toward whom other circumstances point as being guilty of the commission of the crime charged. In 12 Cyc. 393, we find the following: "Evidence procured by use of bloodhounds. Where human tracks were found leading from the place of the crime, evidence that shortly thereafter a dog, if it is proved that he had been trained to and tested in following human foot tracks, followed such tracks to the defendant's house is admissible." In the case at bar there were no foot tracks testified to by any witness.

We have not been able to find a case anywhere holding that a defendant can be convicted on dog testimony alone. On the contrary the weight of authority seems to be, and is, that evidence of the conduct of blood hounds can be introduced only as corroborative and not substantive evidence.

Geo. H. Ethridge, assistant attorney-general, for the state.

The evidence makes out the corpus delicti, but the evidence connecting the appellant with crime is very meager. It seems to present itself in about this way: Can a man be convicted on the unsupported testimony of the bloodhound? How can the fact that a bloodhound trailed from the scene of the crime to the place of the defendant convict without positive proof that the original trail was made by the appellant?

While I do not believe that questions of fact passed upon by a trial court and jury should be overturned by an opinion of this office, and do not believe that a confession of error is ever very helpful to ...