State v. Fixley

• Decision Date: 07 March 1925
• Docket Number: No 25,174,25,174
• Citation: 118 Kan. 1,233 P. 796
• Parties: THE STATE OF KANSAS, Appellee, v. EMMETT FIXLEY, Appellant
• Court: Kansas Supreme Court

233 P. 796

118 Kan. 1

THE STATE OF KANSAS, Appellee, v. EMMETT FIXLEY, Appellant

No 25,174

Supreme Court of Kansas

March 7, 1925

Decided January, 1925.

Appeal from Miami district court; JABEZ O. RANKIN, judge.

Judgment reversed and cause remanded.

SYLLABUS

SYLLABUS BY THE COURT.

1. CRIMINAL LAW--Bloodhound Evidence--Competency. Testimony of the trailing of bloodhounds of one charged with crime may be used in evidence in corroboration of other evidence or as a circumstance tending to show the presence of the accused at the location of the crime, where it is shown by one having knowledge that the dogs were trained and tested in tracking human beings and by previous experiences had been found to be accurate and reliable.

2. SAME--Weight and Sufficiency. Testimony of this kind without other substantial evidence connecting the defendant with the crime charged is insufficient to sustain a conviction, and it is held that the evidence in the present case does not support the verdict of the jury finding the defendant to be guilty.

Silas Porter, of Topeka, Alpheus Lane, and Karl V. Shawver, both of Paola, for the appellant.

C. B Griffith, attorney-general, and S. J. Shively, county attorney, for the appellee.

OPINION

JOHNSTON, C. J.:

Emmett Fixley was charged with and convicted of the murder of Flora Ready, and from the judgment of conviction he appeals.

At the time of the offense Flora Ready was about forty-five years of age, had a daughter seven years old and was living with her mother in Osawatomie. She was employed in a telephone exchange and on the evening of February 18, 1923, was receiving and answering calls until about 9:30, when she was relieved by another operator and started for her home, which was about four blocks from the telephone exchange. She was accompanied by another operator about half the distance and then proceeded homewards alone. She was seen at the corner of the railroad station, where she turned south going across a parking near the station. She was not seen alive again by any of the witnesses. Not arriving home at the accustomed time, notice of her absence was given and a search for her was started. In the course of the search three persons with a lantern went to the railroad parking and there found a pocketbook, a pair of eyeglasses, a switch of hair, and some blood was found on the grass. Near these a pair of men's gloves was found. Continuing the search the body was found about 175 feet away in a dark place near an icehouse. Her upper lip was cut through, her face was bruised and bloody, one eye was black and swollen, and she had evidently been struck a heavy blow on the jaw. A scarf which she had worn was twisted and drawn tightly around her neck. The shoes worn indicated that the body had been dragged from the place of attack across the railroad tracks to the icehouse. There she was found about 10:35, lying upon her back, her feet widely apart, her clothes above her knees, and there were some blood spots on her underclothes below the waist, and the coroner upon an examination reached the opinion that there had been recent sexual intercourse.

While there was a Negro resort or restaurant, said to be of low grade, close to the ice house, where the body was found, and a number of strangers in town who came there on account of a railroad strike, no clue led to suspicion that any of these had committed the assault, but attention was directed towards the defendant through the action of bloodhounds that were brought from Kansas City to the scene of the crime. The owner of the dogs arrived in Osawatomie about five o'clock the following morning. He was taken to the park where the pocketbook, glasses, gloves and hair were found, and the dogs were started on a trail. They ran in circles for a time and then scouted up and down streets and alleys over vacant lots upon the porches of a number of homes and then came back to the locality from which they started. Two other starts were made, and on one of these the dogs went to the icehouse where Mrs. Ready's body was discovered, and from there pursued an irregular course, but in their ramifications they went to the house where the defendant was staying, which was his father's home, and later to a garage where he had been the previous evening. They also went to an automobile at the garage in which he rode to the railroad station. The door of the automobile was opened and one of the dogs went in and sat down on the back seat, which it is said had been occupied by the defendant on his trip to the railway station. Only one of the dogs entered the car, and there the owner who had them in leash appeared to think the quest was ended and did not start the dogs on another trail. The dogs had been traveling rapidly for a period of about two hours.

The action of the dogs is practically the only evidence upon which the conviction of the defendant is based. He was in the city when the offense was committed and left there for Kansas City about thirty minutes after it was committed. At first the prosecution seemed to place some reliance upon what was called the flight of the defendant, but it appears without dispute that he had arranged to go to Kansas City on an afternoon train of that day, but before the train left a relative came to town on another train and he postponed his trip to Kansas City to visit with the relative until he left later in the afternoon. There was no train leaving Osawatomie for Kansas City on that evening, and defendant consulted agents and taxi drivers as to where he could go to catch a train that would take him to Kansas City. He also used the public telephones for that purpose, and finally learned that by driving to Beagle, six or seven miles away, he could catch an M. K. & T. train that would carry him to his destination. It appears that he called at the White Way garage about 8:30 in the evening and arranged for a taxi to take him to the station, and left there saying he would return in about an hour. He did return about 9:45 or 9:50 and played two games of checkers while waiting for the taxi to take him to the station. Many people knew of the contemplated trip and of the circumstances of his leaving, and there is no ground to regard his leaving as a flight from the scene of crime such as would give rise to an inference of guilt.

The defendant had been arrested a number of times and convicted of several offenses. These facts were brought out on his cross-examination and while competent as tending to impeach his credibility as a witness, they did not constitute evidence upon which to base a finding of guilt of the murder charged.

The defendant insists that the evidence relating to the action of the bloodhounds was not admissible because the dogs were not shown to have been sufficiently trained and skilled in taking the scent of human beings and tracking their footsteps, and that the former experiences of the dogs on human trails were not shown to be reliable. It is further contended that the action of the dogs after being set on the trail as they wandered about the city over streets and places not claimed to have been traveled by the defendant discredits any claim of their skill and reliability and deprives the evidence of any probative value. It is further contended that even if the action of the dogs be treated as admissible, as circumstances tending to show that defendant had traveled over some of the courses taken by the dogs, such evidence unsupported by other evidence connecting the defendant with the murder is insufficient to support a conviction. The owner of the dogs testified as to their training and experience saying that he was a bloodhound breeder, had had experience with dogs in trailing human footsteps, that he had owned one of the dogs since 1915, the other two were young dogs, one eight months old and another six months old. He stated that he had had experience with these dogs in trailing human footsteps and that they were reliable and accurate in their work. No instances of such experiences were given. The extent of his testimony as to the training, experience and skill of the dogs in tracking human beings, were his conclusions that the dogs were well bred and were reliable in their work. Each of the three dogs wore a harness to which a strap about eight feet long was attached and the owner took the dogs to the place in the park where the assault was committed, holding their heads from the ground until they reached the place pointed out to him as the location of the assault, whereupon he let their heads down with the admonition "go find them." They immediately put their noses to the ground picking up a scent and started on a trail. He stated that he did not jerk the dogs nor attempt to guide them to any particular place and did nothing except to follow them and to keep repeating "go find them." There is a paucity of evidence as to the training of the dogs and as to the instincts, habits and faculties as shown by what they had previously done in following human trails, but as the conclusions of the owner were given without objection and accepting them, it may be said there was some proof that the older dog at least had been trained and tested. In the course of the owner's testimony he stated that he placed most reliance on the youngest, the one that was six months old. The value of evidence in locating a suspect of crime by bloodhounds is still a debatable question and while accepted in many...