Pedigo v. Commonwealth

• Decision Date: 22 January 1898
• Citation: 44 S.W. 143,103 Ky. 41
• Parties: PEDIGO v. COMMONWEALTH.
• Court: Kentucky Court of Appeals

44 S.W. 143

103 Ky. 41

PEDIGO v. COMMONWEALTH.

Court of Appeals of Kentucky.

January 22, 1898

Appeal from circuit court, Barren county.

"To be officially reported."

Walter Pedigo was convicted of barn burning, and appeals. Reversed.

L McQuown, for appellant.

W. S Taylor, Atty. Gen., for the Commonwealth.

DU RELLE, J.

Appellant was indicted jointly with Worth Wilson for burning the stock barn of L. W. Preston, on March 10, 1897, and, having been given a separate trial, was found guilty, and sentenced to three years' confinement in the penitentiary. Upon the trial, Preston testified that, at 10 minutes of 9 in the evening, he discovered the fire coming through the barn from the southwest corner; and that he thereupon "telegraphed to Neighbors, at Elizabethtown, and got his bloodhound, that arrived the next day at noon, and carried him to the rear of the southwest corner of the barn; and the dog took a track and went in a south direction to the lane, and went down the lane three panels, and crossed the fence through the place of Spencer, into the street, and then up the street, towards the dormitory, and up to the house of Nan Tunstel's, opposite the dormitory. The dog was then taken to the alley that leads out of the street; east, from the one on which the dormitory is situated; and the dog took a track then, and followed it up that street, through the plank fence, through Mr. Joe Smith's, following a path into the Knob road, out that road to Dolph Depp's gate, crossed the fence in a low place near the gate, and then through the swamp in the field towards my barn that was burned." After testifying to some other matters, the witness further stated: "Next day after the fire witness, following the dog, saw tracks going through Spencer's field. The tracks were about four feet apart, and were the tracks of one person, and looked like person was running, and dog followed that track. Witness stayed from fifty to one hundred yards behind the dog, trying to keep the crowd back." This was all the testimony in regard to the dog. The barn was totally destroyed, together with a lot of horses and other stock and property.

It appears that the dormitory spoken of was situated about 500 yards towards the center of town from Preston's barn, and was a tenement occupied by a large number of families and individuals, many of whom were of bad repute. Immediately opposite the dormitory, on Front street, was the house of Nan Tunstel, which appears to have been a house of ill fame. It is admitted that both appellant and his codefendant were at the dormitory and the Tunstel house before and after the fire, in company with Fannie Hogan, a lewd woman, whom appellant was in the habit of visiting, and with Pearl Crumpton, another woman of the same class, whom Wilson afterwards married. Lula Simmons, another inmate of the dormitory, testified that, at "about good dark" on the evening of the fire, she was getting some mullein for use as medicine in the field back of Preston's barn; that she was just behind the barn, and about 75 yards from it, and when she started back, she saw appellant come out of the back door, and shut the door, and he said to her, "Hello, Lula! You will see a hell of a fire here in a little while;" that he then got over the fence back of the barn, staggering, and apparently drunk, and came to where she was; that they walked together out of the field, through Depp's field (which lay in the direction of the dormitory from Preston's), down the lane back of Depp's house that leads down to the pike; that she got over the fence, and went on through the field, but that appellant went towards the pike, while she went on back of Spencer's house, through his stable lot, and up the road to the dormitory. As nearly as can be ascertained from the bill of exceptions (which is quite indefinite as to the locations), the track followed by the dog coincides in some respects, though not in all, with that taken by appellant according to the statement of the Simmons woman, so far as she claims to have seen his movements. Two other witnesses testified to having seen, a short time before the fire, two unidentified men at the point in the lane where the dog was set to trailing the second time, and from which point the dog went in the direction of the barn. These witnesses knew both appellant and Wilson, but did not recognize either of the men. Alice Cass, another inmate of the dormitory, was permitted to testify that, about three-quarters of an hour before the fire, Wilson came to her room, and borrowed some matches; that some one was on the porch with him, but she did not know who it was. There was some testimony of statements by appellant after the fire tending to cast some suspicion upon him. Preston had testified on redirect examination that he saw Wilson in Louisville, told him there was a reward of $250 offered for the man who burned the barn, and that Wilson could have the reward if he would help to get the man, to which Wilson replied, "I am a poor fellow, and hard up, but I would hate to tell who it was, for Walter Pedigo is a good friend of mine." This testimony, of course, should not have been admitted, and was properly excluded from the jury on the day following.

The defense relied on was an alibi. The two women, Fannie Hogan and Pearl Crumpton, testified that appellant and his co-defendant, Wilson, were in their company all the evening until the time of the fire, and there was other corroborative testimony to the same effect. Upon cross-examination, the witness Hogan was asked if her husband (she being a married woman) had not said to her in Louisville, in the presence of Policeman Hessian, that she had left him, and taken up with "a damned barn burner," and if she had not replied that her husband would keep on until he got her connected with the barn burning; if Hessian did not ask her who it was that fell over the fence and hurt themselves; and if she had not said, "It was not me, as we run;" and if she had not further said, if she talked, she would get some one into trouble. Having responded in the negative, Hessian was permitted to contradict her, and state that the conversation indicated had taken place. She was further asked if she had not told Preston, in the presence of Bailey, that she would tell him what she knew about the fire if he would not ask her anything about Walter Pedigo, and if she had not told Preston that one of the Reynolds boys burned it, and got five dollars for it. This was answered in the negative, and Bailey was permitted to testify in regard to the conversation indicated; the court in regard to this testimony-and this only-cautioning the jury that the evidence of Bailey was to be considered only as affecting the credibility of the witness Hogan.

From the statement of facts it is evident that the most important question is whether the testimony in regard to the dog and his actions was competent. On behalf of the commonwealth, it was urged that this testimony was admissible for what it was worth, as one of the circumstances pointing to the guilt of appellant. On the other hand, it is insisted with great earnestness that, while evidence concerning the tracking of human beings by dogs has been sometimes acted upon by mobs it has never been admitted as competent in the courts of any state except one, and in that one under conditions which did not exist in this case; that, if admissible at all, it is admissible solely upon the ground that it is expert testimony; and that no evidence was offered or admitted that the dog in question was qualified or had been trained to track human beings, or even that he was in fact a bloodhound. The only cases upon this subject to which we have been referred, or which we have been able to find, arose in Alabama. In the case of Hodge v. State (Ala.) 13 So. 385, upon a trial for murder, it appeared that on the night of the killing, just after it was done, several witnesses went to the place, and discovered in close proximity to the house man tracks. The tracks were sufficiently marked to be easily followed, and were followed by several of the witnesses up to, or very near to, the house of defendant. One of the Witnesses, while on the stand, was asked the following question: "If he had, at the time he was searching for tracks, a trained dog for tracking a man?" Against objection, the witness was permitted to state that he did own such a dog; that, when the tracks were discovered near the house of deceased, he got his dog, and put him on the tracks; and that the dog, after taking the trail, followed the tracks, and went to defendant's house, being followed by the witness. Said the court in that case: "It is common knowledge that dogs may be trained to follow the tracks of a human being with considerable certainty and accuracy. The evidence in this case showed that a dog thus trained was, within a very short time after the homicide, put upon the tracks of the person towards whom all the circumstances strongly pointed as the guilty agent, and that the dog, as if following these tracks, or 'trailing,' went to the house of the defendant." There was other evidence showing that measurements were made of the tracks at various points along the route, and they were identified at each point as having been made by the same shoes as were the tracks at the place of the murder; and it was held that "the fact that the dog, trained to track men, as shown in the testimony, was put on the tracks at the scene of the homicide, and, 'taking the trail,' so to speak, went thence to defendant's house, where he (the defendant) is shown to have been that night after the killing, was competent to go to the jury for consideration by them, in connection with all the other evidence, as a circumstance tending...