Ruse v. State

• Decision Date: 19 April 1917
• Docket Number: No. 23128.,23128.
• Citation: 115 N.E. 778,186 Ind. 237
• Parties: RUSE v. STATE.
• Court: Indiana Supreme Court

186 Ind. 237

115 N.E. 778

RUSE

v.STATE.

No. 23128.

Supreme Court of Indiana.

April 19, 1917.

Appeal from Circuit Court, Howard County.

Thomas A. Ruse was convicted of crime, his motion for new trial overruled, and he appeals. Reversed, with instructions to sustain the motion for a new trial and for further proceedings not inconsistent with the opinion.

Blacklidge, Wolf & Barnes, B. C. Moon, and F. J. Byers, all of Kokomo, for appellant. Evan B. Stotsenburg, Atty. Gen., Don P. Strode, of Kokomo, Wilbur T. Gruber, Asst. Atty. Gen., and J. C. Herron and Bell, Kirkpatrick & Voorhis, all of Kokomo, for the State.

SPENCER, J.

Appellant was tried and convicted on an indictment which charges him with a violation of section 2322, Burns 1914. In prosecuting this appeal he assigns error in the overruling of his motion for a new trial, and, under this assignment, first challenges the action of the circuit court in refusing to give his requested instruction No. 13.

In order more readily to understand the purpose of this instruction, it is important to note briefly certain circumstances connected with the trial of the cause. On the voir dire examination, the prosecuting attorney was permitted, over the objection of appellant, to interrogate each juror as to whether, in the event the jury should be allowed to hear evidence relating to bloodhounds, he would have any prejudice against receiving and considering evidence of that character. Later, in his opening statement to the jury, one of the attorneys for the state was permitted, also over the objection of appellant, to comment at some length on the evidence which the prosecution, if permitted so to do, expected to introduce for the purpose of showing that a bloodhound had tracked appellant from the scene of the crime to his place of residence and to prove the pedigree and training of the dog in question. During the trial, evidence of this character was offered by the state, and, on objection thereto by counsel for appellant, the jury was excused while the matter was argued. The court sustained appellant's objection, and the prosecution thereafter made no direct effort to prove the conduct of the bloodhound. On the subsequent examination of several witnesses, however, it developed incidentally that a dog was brought to the scene of the crime, and accompanied its owner while the latter followed a trail of visible footprints leading in the direction of appellant's house; also that appellant became excited and threatened to shoot the animal when it was brought onto his premises. To meet the situation thus presented, counsel for appellant tendered, and requested the court to give, the following instruction:

“In the opening statement of counsel for the state he was permitted to detail at length the evidence which the state proposed to prove, if the court should hold such evidence admissible, concerning the actions and conduct of a bloodhound upon which the state relied for the conviction of the defendant. The court has held such evidence not to be admissible, and has excluded the same from your consideration. You will therefore wholly disregard the statement of the attorney for the state upon this subject, and determine this case upon the evidence introduced in connection with the presumptions referred to in other instructions. You will not consider as evidence of guilt any testimony as to the conduct of such bloodhound which has incidentally crept into the case in proving other facts.”

The court refused this instruction, but gave another in which the jury was charged generally that in passing on the questions at issue it should “not give any consideration to the unsuccessful efforts of the attorneys on either side of the case to prove facts which the court has deemed to be improper in evidence.” The state now claims that the latter instruction includes the substance of instruction 13, above set out, and it was not error to refuse the more specific charge. Ginn v. State, 161 Ind. 292, 293, 68 N. E. 294;Raine v. State, 137 Ind. 83, 91, 36 N. E. 532.

[1] It must be noted, however, that the ruling on the admission of bloodhound evidence as tending to prove guilt was made in the absence of the jury. It further appears that, while evidence concerning the dog and its presence on appellant's premises was thereafter properly admitted for other purposes, there was nothing before the jury to indicate that such evidence was of restricted probative value. Under our Constitution, in a criminal case, the jury is the judge of the law as well as of the facts, but that provision is subject to the rule of procedure that, in both civil and criminal cases, the court determines the competency of evidence, and the jury is bound by its decision thereon. It is well settled, also, that in cases where evidence is admissible for a restricted purpose only the court should, on request, limit the jury to a consideration of such evidence for that purpose. Eppert v. Hall, 133 Ind. 417, 420, 31 N. E. 74, 32 N. E. 713;Thistlewaite v. Thistlewaite, 132 Ind. 355, 357, 31 N. E. 946.

[2][3] On the other hand, it must be borne in mind (1) that, if the trial court improperly sustained appellee's objection to the admission of bloodhound evidence, its refusal later to give instruction 13 was, at most, harmless error; and (2) that, unless appellee's requested instruction is correct as tendered, he may not complain of its refusal. American Motor Car Co. v. Robbins, 181 Ind. 417, 420, 103 N. E. 641;Town of New Castle v. Grubbs, 171 Ind. 482, 500, 86 N. E. 757;Mosier v. Stoll, 119 Ind. 244, 252, 20 N. E. 752.

We are required, then, to determine whether evidence as to the conduct of bloodhounds used in trailing persons accused of crime is admissible under any circumstances as tending to establish the guilt of a defendant. This question, although noticed in Stout v. State, 174 Ind. 395, 398, 92 N. E. 161, Ann. Cas. 1912D, 37, has never been decided in this jurisdiction, and the decisions thereon in other courts are not in harmony. Those cases which sustain the admissibility of such evidence do so for reasons which are thus stated in Commonwealth v. Hoffman, 52 Pa. Super. Ct. 272, 277, where the subject is considered at some length and the authorities collected:

“It is a matter of common knowledge, of which the courts are authorized to take notice, that many animals have a special innate propensity, or sagacity, which transcends the general experience of human beings. It is called a natural intuitive power, perception, or instructive quality, due to effect of habits in successive generations, or original intelligence, specialto a class, in which the choice of means suitable to each particular instance is unconsciously made. The migration of birds and fish, dread of animals of prey, invariable habits of many animals in their natural or a domesticated state, are so frequently and vividly brought to our notice that the existence of these special endowments cannot be ignored. We know that certain breeds of dogs are invested with special traits and gifts, peculiar to their respective kind-the pointer and setter take instinctively to hunting birds; the hound, to foxes, deer, and rabbits. While there is no breed of dogs that instinctively hunts mankind, yet we do know that dogs are capable of being trained, or acquire the habit of their own elective preference, to follow the tracks of human beings. It is a well-known...