In State v. Steely, 327 Mo. 16, 33 S.W.2d 938 (Mo. 1930), in ruling on an assignment of error that the court erred in failing to instruct on good character, the court said: "The only evidence offered as to the reputation of the defendant was as to his truth and veracity.Summary of this case from State v. Underwood
December 31, 1930.
1. SEARCH: Following Footprints. Where the witness, not an officer, followed the tracks of a human being from the henhouse to defendant's home and there saw in a smokehouse some chickens which resembled those stolen, a motion to suppress the evidence on the ground that no search warrant had been obtained, is properly overruled.
2. ____: Witness: Not Officer. The constitutional protection against unreasonable searches does not apply to a witness who is not an officer, and who without a search warrant follows human footprints from the place where the chickens were stolen to the place where they were found.
3. EVIDENCE: Bloodhounds. After preliminary proof, made by persons having personal knowledge of the facts, that the bloodhounds were of pure blood stock, characterized by accurate scent and power of discrimination to track human beings, and accustomed and trained so to do; that by experience they have proved to be reliable and able to follow a trail from beginning to end, to the exclusion of all other trails which may intervene; that in the case on trial they were put on the trail at the scene of the crime or some place where the evidence shows the culprit to have been, and that they pursued this trail to the end and made their customary sign of identification, evidence of the work of such dogs is admissible under proper restrictions and cautionary instructions.
4. ____: ____: How Far Proof. The work of bloodhounds, even after the necessary preliminary proof making their work admissible evidence, is not proof that defendant committed the crime charged, but is only a circumstance to show that he was at the scene of the crime prior to the time the dogs were placed upon the trail.
5. INSTRUCTION: Good Character. Where the only evidence offered as to the reputation of defendant relates to his truth and veracity, the court is not bound by the statute (Sec. 4025, R.S. 1919) to instruct on good character.
Appeal from Texas Circuit Court. — Hon. J.H. Bowron, Judge.
Stratton Shartel, Attorney-General, and Ray Weightman, Assistant Attorney-General, for respondent.
(1) The information properly charges burglary and larceny in one count. Sec. 3297, R.S. 1919, as amended Laws 1921, p. 196; Secs. 3312, 3305, R.S. 1919; State v. Carpenter, 216 Mo. 442; State v. Stuart, 316 Mo. 154; State v. Tipton, 271 S.W. 55, 307 Mo. 500. (2) The motion to suppress the evidence was properly overruled. State v. Grubbs, 316 Mo. 243, 289 S.W. 852; State v. Rhodes, 316 Mo. 574; State v. Loftis, 316 Mo. 878, 292 S.W. 29. While the search was made without a search warrant, it was not made until the chickens were discovered in the smokehouse on defendant's premises by first being heard and then by being seen through an opening in the walls of the building. A search is justified under the circumstances under the foregoing authorities. (3) While the owner of the bloodhounds had only sixty days' experience with them, yet his testimony disclosed that his qualifications were amply sufficient. It is apparent from the testimony that the animals were qualified by pedigree and experiments to trail human beings. The trial court gave several cautionary instructions requiring the jury to find the bloodhounds capable by nature, training and experiments to trace human beings, and advised the jury that unless it found the dogs to be so qualified, it should not consider the evidence resulting from their use. Under those instructions, the evidence was properly presented to the jury. State v. Rasco, 239 Mo. 535; State v. Barnes, 289 S.W. 562. (4) The trial court may not be convicted of error for his failure to instruct the jury on the subject of good character. At the close of the defendant's testimony, the State undertook to show that the defendant's reputation for truth and veracity, made up by what the people in the community generally said about him, was bad. This evidence was for the purpose of impeachment only, and so long as it did not show defendant's reputation for being or not being a peaceable and law-abiding citizen, a character instruction is not necessary. State v. Hayes, 295 S.W. 793; Sec. 4025, R.S. 1919. (5) Defendant complains that there was no evidence that the chickens were of any value. He was acquitted of larceny and found guilty of burglary in the second degree. The information alleged that chickens were in the building broken into, and this court has said: "Chickens and all kinds of poultry are valuable things within the meaning of the statute." State v. McGuire, 193 Mo. 215.
By an information filed in the Circuit Court of Texas County, the defendant was charged with burglary and larceny, to-wit, breaking into a chicken house of one R.W. Nipps and taking therefrom one hundred and twenty chickens. Upon a trial, the jury found the defendant guilty of burglary only, and assessed his punishment at two years in the state penitentiary. Motion for a new trial was filed, overruled, and defendant sentenced. From this sentence he has appealed to this court.
The evidence on the part of the State is substantially as follows:
The owner of the premises alleged to have been burglarized was away from home and left his belongings in charge of one Charlie Garlett, a neighbor. On the night in question Garlett had locked the henhouse. The next morning when he returned to the place, he noticed chickens coming through a window. The window, according to the witness, was screened. The screening was found to have been torn or broken. Counting the chickens, one hundred and twenty seemed to be missing. A light rain or heavy dew had fallen that night. Garlett sent for bloodhounds leaving instructions that no one should go near the window in question. Several witnesses testified that human tracks led from the henhouse to the home of the defendant.
These tracks, according to witnesses, could be followed by the footprints in the grass and weeds, and along this trail were found chicken feathers of sufficient number to follow it to defendant's home. Witness further testified that when the bloodhounds arrived they were given the scent at the window with the broken screen; that the dogs followed the trail to defendant's home, and, according to the owner of the dogs, went up to the defendant, made their usual sign of identification and quit their work, indicating thereby that they had finished their trail. Eighteen chickens were found in defendant's smokehouse, which were identified by Garlett and several witnesses as the chickens belonging to Nipps.
Defendant testified that he placed the chickens in the smokehouse, but claimed them as his own, explaining that he had tied them preparatory to taking them to market. Defendant also offered evidence in support of his defense, an alibi. Defendant's household consisted of himself, his wife and five small children.
Defendant was represented by able counsel who have not favored this court with a brief. In view of the long record, a brief would have been appreciated.
Prior to the trial, defendant filed a motion to suppress the evidence relating to the finding of the chickens, because no search warrant had been obtained. This motion was Search overruled, and defendant alleges this as error in his Warrant. motion for new trial. The circuit court heard much testimony on this motion. To dispose of this assignment it is sufficient to state that witness Charlie Garlett, not an officer, aided in following the tracks of a human being from the smokehouse of Nipps to defendant's home. After arriving there and while seated near a small building about twenty steps from defendant's home, he heard chickens in the building and looking through a crack in the wall saw some chickens, which resembled those stolen. Witness opened the door and found what witness and his wife identified as part of the chickens alleged to have been stolen. Garlett not being an officer, the constitutional protection against unreasonable search, etc., does not apply. [State v. Pomeroy, 130 Mo. 489, 32 S.W. 1002; 32 Cyc. 1274 (E. 73); Chapman v. Commonwealth, 267 S.W. (Ky.) 181.]
This also disposes of the assignment relating to Instruction A, offered by defendant and refused by the court. Instruction A purported to eliminate the evidence mentioned in the motion to suppress. Assignments No. 5 and No. 3 and the eight Bloodhounds. subdivisions thereof, pertain to the evidence on the work of the dogs. Evidence of this kind is held to be admissible by the great weight of authority under proper restrictions and cautionary instructions. The preliminary proof usually required is that the dogs must be of pure blood stock, characterized by acuteness of scent and power of discrimination to track human beings and must be accustomed and trained so to do; that by experience they have proved to be reliable and able to follow a trail from beginning to end, to the exclusion of all other trails that may intervene. In the case on trial, the dogs must be put on the trail at the scene of the crime or some place where the evidence shows the culprit to have been. Also, that the dogs pursued this trail to the end and made their customary sign of identification. This preliminary showing must be made by persons having personal knowledge of the facts. [16 C.J. 565, and cases cited; State v. Fixley, 233 Pac. (Kan.) 796; State v. McKinney, 106 S.E. (W. Va.) 894; State v. McLeod, 146 S.E. (N.C.) 409; State v. Barnes, 289 S.W. (Mo.) 562.]
When the preliminary foundation is thus laid, then the evidence is admissible. The circumstances surrounding the working of the dogs in the case on trial their previous experience, training and breed should go to the jury. In then becomes a matter for the jury to weigh the testimony and give it such credit and weight as they deem proper; not, however, that the defendant committed the crime, but as a circumstance to show that the defendant was at the scene of the crime prior to the time the dogs were placed on the trial. [16 C.J. 564; State v. Rasco, 239 Mo. 535, 144 S.W. 449. For later cases see Fisher v. State, 116 So. (Miss.) 746; State v. Barnes, supra; Stidham v. Commonwealth, 297 S.W. (Ky.) 929; Meyers v. Commonwealth, 240 S.W. (Ky.) 71; Copley v. State, 281 S.W. (Tenn.) 460; Holub v. State, 172 S.W. (Ark.) 878; West v. State, 234 S.W. (Ark.) 997.] The requirements as to the preliminary showing were somewhat relaxed in Fox v. State, 246 S.W. (Ark.) 863, by a majority of the court. However, a strong protesting dissenting opinion was filed by SMITH, J., in which HART, J., concurred. For courts holding the evidence inadmissible, see 16 Corpus Juris, page 564, note 45, and cases cited. In the present case before the court, we find the preliminary showing sufficient to make the testimony admissible. A pedigree certificate was offered as to each dog, indicating the dogs to be of pure blood stock for six generations. The trainer of the dogs testified as to their training, accuracy and experience; the owner as to the work of the dogs in the case on trial. Defendant's counsel was permitted to and did cross-examine each witness fully on this subject. The court properly protected the defendant giving cautionary instructions offered by the State and also those offered by defendant. We therefore rule this assignment against the defendant.
There is no merit in the assignment of error No. 6. The venue was sufficiently shown to have been in Texas County. Also there is no merit in assignment No. 7. The only evidence offered as to the reputation of the defendant was as to his truth and veracity. Therefore, the court was not bound to instruct on good character, under Section 4025, Revised Statutes 1919, as contended by the defendant. [State v. Hayes, 295 S.W. 791.]
We have examined the record and find the information in approved form and Instruction 1 follows the information and is correct. Finding no reversible error in the case the judgment of the lower court is affirmed. Davis and Cooley, CC., concur.
The foregoing opinion by WESTHUES, C., is adopted as the opinion of the court. All of the judges concur.