Livingston v. State
| Decision Date | 10 January 1895 |
| Parties | LIVINGSTON v. STATE. |
| Court | Alabama Supreme Court |
Appeal from city court of Montgomery; Thomas M. Arrington, Judge.
Vandy Livingston was convicted of burglary, and appeals. Reversed.
There is but one question presented on the present appeal, which refers to the ruling of the court upon the introduction of evidence. The facts in reference to this ruling are sufficiently stated in the opinion.
John G. Winter, for appellant.
Wm. C. Fitts, Atty. Gen., for the State.
A witness for the state testified that there was some tracks found near the building which had been burglarized; that one of the tracks was made by a person wearing a No. 6 or 7 shoe; that defendant wore a 6 or 7 shoe, and " these [ tracks] corresponded, in his opinion, with the track of defendant. " To the part of this evidence which is italicized, the defendant objected, but the court admitted it, and defendant excepted. There was other evidence, tending to show that the defendant was guilty, and some tending to show he was not. The court admitted, that, of itself, this evidence was not sufficient, and stated: "That unless some other evidence is introduced connecting the defendant with the offense charged, I will exclude the evidence as being insufficient by itself." If illegal, no other evidence tending to show defendant's guilt, could make it legal, and that it was illegal, as being the mere expression of an opinion of the witness, as to the correspondence or identification of the tracks, with those of defendant, there can be no doubt. He was not competent to give his opinion on the subject at all. He should have been required to state the facts of correspondence and identification, and it was for the jury to find from the facts thus deposed to, whether they corresponded with and were the defendant's tracks. Hodge v. State, 97 Ala. 40, 12 So. 164; Riley v. State, 88 Ala. 193, 7 So. 149; Busby v. State, 77 Ala. 66; Young v. State, 68 Ala. 569.
Reversed and remanded.
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Pope v. State
...case, it was ruled that the witness could not state that particular tracks "corresponded with the track of defendant." Livingston v. State, 105 Ala. 127, 16 So. 801. James v. State, 104 Ala. 20, 22, 16 So. 94, the witness had described the physical peculiarities of the defendant's tracks. H......
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Brindley v. State
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Tice v. State
...the marked peculiarities and is subject to cross-examination by the defendant. Pope v. State, 57 So. at 250. But see Livingston v. State, 105 Ala. 127, 16 So. 801 (1895) (wherein the court ruled that a witness could not state that particular tracks "corresponded" with the defendant's Howeve......
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Wilson v. State
... ... worn by the defendant, as this left it to the jury to decide ... whether or not the tracks were made by or corresponded with ... the feet of the defendant, and which differentiates this ... testimony from that condemned in the case of Livingston ... v. State, 105 Ala. 127, 16 So. 801, and is similar to ... the character of track evidence upheld in the case of ... Ethridge v. State, 124 Ala. 106, 27 So. 320. It is ... true there was much to weaken the probative force of this ... evidence, as the witness did not give the exact size of ... ...