State v. Harrison

• Decision Date: 10 May 1921
• Docket Number: 24540
• Citation: 88 So. 696,149 La. 83
• Court: Louisiana Supreme Court
• Parties: STATE v. HARRISON

88 So. 696

149 La. 83

STATE v. HARRISON

No. 24540

Supreme Court of Louisiana

May 10, 1921

Appeal from Twenty-Seventh Judicial District Court, Parish of Saint James; Sam A. Le Blanc, Judge.

William Harrison was convicted of breaking and entering dwelling house in the nighttime, with intent to steal, and appeals.

Verdict and sentence annulled, and case remanded for new trial.

Howell Wortham & Le Bourgeois, of Convent, for appellant.

A. V Coco, Atty. Gen., Aubert L. Talbot, Dist. Atty., of Napoleonville (T. S. Walmsley, of New Orleans, of counsel) for the State.

O'NIELL, J. PROVOSTY, J., concurs in decree.

OPINION

O'NIELL, J.

Appellant was convicted of the crime of breaking and entering a dwelling house in the nighttime, with intent to steal, and was sentenced to imprisonment in the penitentiary for a term not less than five nor more than six years.

The record contains three bills of exception. The first bill was reserved to the overruling of defendant's motion for a continuance or postponement of the trial. The motion was founded upon the absence of a witness who had been duly summoned to testify to the good character or reputation of defendant. The witness resided in a neighboring parish. The subpoena was duly served, and the sheriff's return thereon was promptly filed, together with a physician's certificate, showing that the witness was unable to attend court because of illness. In response to the motion for a continuance, the district attorney made the admission that the witness would, if present, testify to the facts alleged in the motion. The court then overruled the motion, under authority of Act 84 of 1894 (page 117). The ruling was correct. The statute allows either the state or the defendant in a criminal prosecution to obviate a continuance or postponement of the trial, because of the absence of a witness, by admitting that the witness would, if present, testify to the facts alleged in the motion for a continuance. Of course, the statute shall not deprive a defendant of the right guaranteed him by article 9 of the Constitution, "to have compulsory process for obtaining witnesses in his favor." But the Constitution does not guarantee that every witness upon whom compulsory process shall have been served shall be present at the trial. When due process of the court has been exercised and is unavailing, the statute, allowing the state to obviate a continuance or postponement of the trial, by admitting that the absent witness would, if present, testify to the facts alleged in the motion for a continuance, gives a fair and reasonable substitute for the testimony of the absent witness. State v. Fairfax, 107 La. 624, 627, 31 So. 1011; State v. Scott, 110 La. 369, 34 So. 479; State v. Richard, 127 La. 413, 418, 53 So. 669; State v. Allen, 129 La. 733, 56 So. 655, Ann. Cas. 1913B, 454; State v. Anderson, 142 La. 553, 77 So. 279.

The second bill of exception was reserved to the overruling of defendant's objection to the introduction in evidence of two documents purporting to show the registry and pedigree of two bloodhounds that figured in the prosecution. The bill contains a statement, approved by the judge, of all the evidence against defendant. Two bloodhounds were taken to the window through which the burglar had entered the house, not less than 14 hours before, and the hounds followed a trail that led to defendant's home. His shoes fitted a footprint found on the trail. He admitted that, when he heard the hounds coming through his yard fence, and the crowd of men following them, he left his house from the opposite side. It appears that he went to a nearby store, and waited there until the officers sent for him. It is not contended that he attempted to escape or avoid arrest. The evidence on which defendant was convicted, therefore, was the testimony of the owner of the bloodhounds that they took up the trail at the window where the burglary had been committed, and followed it to defendant's home. The question of reliability of the dogs, their reputation for trailing criminals, their acuteness of scent, and, in that connection, their breeding or pedigree, was an important question before the jury.

So-called bloodhound testimony is admissible in evidence against a person accused of crime, merely as a circumstance tending to prove his guilt. State v. King, 144 La. 430, 80 So. 615. In some states such evidence is not admissible at all, and, in those states in which it is admissible, the rule is that it should not be admitted until a proper foundation has been laid, by some proof of the reliability of the dogs, their acuteness of scent and power of sense of discrimination, and, in that respect, their reputation for trailing criminals, their pedigree, training, etc. With all that, the text-writers on the subject doubt that any trial judge would allow a conviction to stand upon proof only of the trailing by bloodhounds.

The documentary evidence objected to in this case consisted of what are termed the registry and pedigree certificates of the dogs. There is one such certificate for each dog. They purport to have been issued in New York on ...