(dissenting). The question of the admissibility of evidence of the trailing of a criminal by bloodhounds is not novel. The earliest case that involved this question was Hodge v. State, 98 Ala. 10 (13 So. 385), decided in 1893. In that case, the evidence showed that tracks were seen near the place where the crime was committed, which were easily followed to a place near the home of the defendant. A bloodhound followed these tracks, and went to defendant’s house. It was held that evidence of what the dog did was admissible as a circumstance to be considered by the jury.
The rule admitting such evidence has been followed in Alabama in Simpson v. State, 111 Ala. 6 (20 So. 572), and Hargrove v. State, 147 Ala. 97 (41 So. 972).
In State v. Hall, 3 Ohio N. P. 125, decided in 1896, the fact that a bloodhound followed a trail about 200 feet from where the stolen goods were hidden in a basket, to the defendant’s *264house, was held admissible as a circumstance to be considered by the jury.
In State v. Dickerson, 77 Ohio St. 34 (82 N. E. 969 [1907]), evidence was offered as to the conduct of the dogs which were taken to the scene of the murder. The history and experience of the dogs were given, and testimony as to their conduct. The court reviewed the authorities in the various states up to that time, including the case of McClurg v. Brenton, supra, from which it quotes at length, and said:
“But we think that, from a comparison of the views expressed by the different courts from whom we have quoted, there may be deduced a rule which, until shown untrustworthy, may be followed in cases where this class of evidence is offered. It is apparent that, before the acts and conduct of the dog can be shown, a proper preliminary foundation must be laid, and to establish such foundation it must be shown that the particular dog used was trained and tested in tracking human beings, and by experience had been found reliable in such eases; that the dog so trained was laid on the trail, whether it was visible or invisible, at a point where the circumstanced tended clearly to show that the guilty party had been, or upon a track which the circumstances indicated to have been made by him. In addition to this, the reliability of the dog must be proved by a person or persons having personal knowledge thereof. This foundation may be strengthened by proof of pedigree, purity of blood, or the exalted standing of his breed in the performance of such peculiar work.”
In Pedigo v. Commonwealth, 103 Ky. 41 (44 S. W. 143 [1898]), the court, in the majority opinion, said:
“After a careful, consideration of this case by the whole court, we think it may be safely laid down that, in order to make such testimony competent, even when it is shown that the dog is of pure blood, and of a stock characterized by acuteness of scent and power of discrimination, it must also be established that the dog in question is possessed of these qualities, and has been trained or tested in their exercise in the tracking of human beings, and that these facts must appear from the testimony of some person who has personal knowledge thereof. We think it must also appear that the dog so trained and tested was laid *265on the trail, whether visible or not, concerning which testimony has been admitted, at a point where the circumstances tend clearly to show that the guilty party had been, or upon a track which such circumstances indicated to have been made by him. When so indicated, testimony as to trailing by a bloodhound may be permitted to go to the jury for what it is worth, as one of the circumstances which may tend to connect the defendant with the crime of which he is accused. When not so indicated, the trial court should exclude the entire testimony in that regard from the jury.”
There was a vigorous dissenting opinion in this case.
In State v. Moore, 129 N. C. 494, 498 (39 S. E. 626), the court held that the evidence was insufficient to permit the question of the trailing by the dogs to go to the jury, although recognizing the rule that such evidence is admissible where a proper showing is made. .
In State v. Adams, 85 Kans. 435 (116 Pac. 608), it was held that, on the establishment of proper preliminary proof, evidence of the conduct of bloodhounds was admissible, its weight to be determined by the jury. There was a dissenting opinion in this case, however.
In Davis v. State, 46 Fla. 137 (35 So. 76 [1903]), it was held that, in order for the evidence regarding the conduct of a dog to be admissible, "there must be preliminary proof of such character as to show that reliance may reasonably be placed upon the accuracy of the trailing attempted to be proved. * * * The intelligence, training, and purity of breed are all proper matters for consideration in determining the admissibility of such evidence, as is also the behavior of the dog in following the track pointed out.”
In the case of Parker v. State, 46 Tex. Cr. 461 (80 S. W. 1008 [1904]), the track of the supposed murderer was discovered and trailed from that point to the residence of the defendant, a distance of about a mile and a half. The dog followed the track which witnesses saw upon the ground, and which they described. The court quotes from the majority opinion in the Pedigo case, and says:
"It is a matter of common knowledge and observation that trained animals of the hound species arc capable of trailing and *266following tracks of human beings, and they have been used time out of mind for that purpose. ’ ’
. In Aiken v. State, 16 Ga. App. 848 (86 S. E. 1076 [1915]), the court reviewed the cases at length, and held that, where it appeared that the person testifying is reliable, and that the dog was trained and able to follow a track under given circumstances, and did so follow a track, such evidence was admissible, to be considered by the jury under proper' instructions of the court.
To the same general effect, holding that such evidence is admissible, see Carter v. State, 106 Miss. 507 (64 So. 215); Holub v. State, 116 Ark. 227 (172 S. W. 878); Padgett v. State, 125 Ark. 471 (188 S. W. 1158); Harris v. State, 17 Ga. App. 728 (88 S. E. 121) ; State v. Hunter, 143 N. C. 607 (56 S. E. 547); State v. Spivey, 151 N. C. 676 (65 S. E. 995) ; State v. Wiggins, 171 N. C. 813 (89 S. E. 58); State v. Rasco, 239 Mo. 535 (144 S. W. 449) ; Commonwealth v. Hoffman, 52 Pa. Sup. Ct. 272; State v. King, 144 La. 430 (80 So. 615); Sprouse v. Commonwealth, 132 Ky. 269 (116 S. W. 344) ; Blair v. Commonwealth, 181 Ky. 218 (204 S. W. 67); Denham v. Commonwealth, 119 Ky. 508 (84 S. W. 538); State v. Yearwood, 178 N. C. 813 (101 S. E. 513); Troup v. State, 26 Ga. App. 623 (107 S. E. 75); State v. Robinson, 181 N. C. 516 (106 S. E. 155); State v. McKinney, 88 W. Va. 400 (106 S. E. 894) ; Loper v. State, 205 Ala. 216 (87 So. 92); State v. Harrison, 149 La. 83 (88 So. 696) ; West v. State, 150 Ark. 555 (234 S. W. 997); Adams v. State (Ark.), 235 S. W. 372; State v. Davis, 149 La. 1009 (90 So. 385).
In South Carolina there is a statute (Criminal Code, Section 940) providing for the use of bloodhounds, or other serviceable dogs, for the tracking and arrest of escaped convicts and other fugitive lawbreakers. See State v. Brown, 103 S. C. 437 (88 S. E. 21).
In 2 Elliott on Evidence, Section 1253, it is said, regarding experiments with bloodhounds:
“There is no certainty in such evidence. It is really the dog that is the witness, and the evidence would seem to be hearsay in this view. ’ ’
The author, however, recognizes the decisions of the courts in holding that, where the proper foundation has béen laid in *267respect to qualifications of the dog, the testimony is admissible, as a circumstance.
In 1 Wigmore on Evidence, Section 177, the author said:
“It is conceded by most courts that the fact that a well trained and well tested bloodhound, of.good breed, after smelling a shoe or other article belonging to the doer of a crime, has tracked definitely to the accused, is admissible to show that the accused was the doer of the criminal act.”
The general rule as to the admissibility of such evidence is recognized in "Underhill on Criminal Evidence (2d Ed.), Section 374-a, and 3 Chamberlayne on Modern Law of Evidence, Section 1760. '
There is an interesting article on “The Bloodhound as a Witness,” by Judge McWhorter, of West Virginia, in 54 American Law Review 109.
There are three cases that hold squarely to the doctrine that such evidence is not admissible in the trial of one charged with crime. The leading case in the United States holding that such evidence is inadmissible is Brott v. State, 70 Neb. 395 (97 N. W. 593). This case has been reviewed in many of the cases cited supra. See, also, People v. Pfanschmidt, 262 Ill. 411 (104 N. E. 804); Ruse v. State, 186 Ind. 237 (115 N. E. 778).
It is evident that the great numerical weight of the precedents sustains the proposition that evidence of trailing a criminal by a trained bloodhound is admissible as a circumstance to be considered by a jury, with other evidence in the ease. Instinct is not unerring; neither is reason. The mere weakness of evidence does not make it incompetent. There are certain limitations upon the admissibility of such evidence, however, and from a careful examination of all of the cases cited, I deduce the following general propositions regarding such evidence.
It must first be shown that the dog is a pure-bred hound, or, in other words, is in fact “a bloodhound.” The popular notion that such an animal is ferocious and bloodthirsty is a misconception. He is called a “bloodhound,” not because of any characteristics of being fierce and savage, but because he is a “blooded”- — pure-bred—hound. As a matter of fact, he is naturally kind, affectionate, and docile. In times of slavery, his lusty bay was terrifying to the superstitious fugitive; but *268as a matter of fact, he is a living exemplification of the ancient proverb, “his bark is worse than his bite.” The pure-bred hound has a remarkable keenness of scent and especial adaptability to following a trail. Encyclopedia Brittanica, article “dog.” All of the authorities agree that, before evidence regarding trailing by a dog can be admitted, it must first be established that the dog is a hound of pure breed, and this must be established by competent evidence. See McClurg v. Brenton, supra. Again, it is imperative that, as a prerequisite to the admission of such testimony, it must first be established that the dog has been thoroughly and carefully trained to trail human beings, and that he has been tested and proven to be capable of doing so with accuracy and reliability. This must depend upon human testimony, to establish the ability, accuracy, and reliability of the animal; and if this evidence is based merely on conjecture or opinion as to the capabilities of the dog, the foundation for the introduction of the evidence as to the actions of the animal in attempting to trail a man is utterly lacking. Again, before the evidence of the dog’s actions can be received, it must be established that there was an unmolested, fresh trail upon which the dog was given the scent. In some of the cases cited, there were visible marks of human footprints where the dog was given the scent. In other cases where the evidence was received,, the dog was used in the pursuit of a known fugitive, and the dog had received the .scent from some wearing apparel or other object with which the fugitive had been associated. But numbers of the cases hold that the evidence is admissible even when the party sought is unknown, and when there are no visible marks, like footprints, to follow, and no available article from which the scent may be obtained. In such cases it is, however, apparent that there must be a place or spot where -it is proven that the party sought has recently been, and that no other person has been at such place since the criminal was there, and that the scent has not been interfered with by r.ain, by the presence of other persons, or in any- other manner'. In other words, the actions of the dog in trailing a party can only be shown in evidence when it is first proven that the animal started on an uncontaminated and fresh scent.. It must also appear that the- movements of the animal were not interfered with in *269any manner by the keeper or any other person or persons during the trailing. If these matters are not all established, the evidence regarding the conduct of the dog in- trailing a party accused of .crime is inadmissible, and should not be received in evidence.
If the essential requisites recognized by the courts are established, the evidence is, at best, but a circumstance, and must be considered as such. Courts that admit such evidence are express in their declarations that a conviction could not rest on such evidence alone. Such evidence is of a very low order. It is not improper to say that it is in the nature of expert testimony, without affording any opportunity to cross-examine the expert. It must rest, in the first instance, wholly upon the veracity and honesty of the person who testifies to the breeding, training, and reliability of the animal.
In all instances where the evidence is admissible, the court should carefully instruct the jury in regard to the subject-matter, and that the jury must find that the essential facts regarding the receipt of the evidence are established; and the jury should be cautioned to consider the evidence of the actions of the dog as only a circumstance in the case.
The court instructed the jury as follows:
“The evidence in this case relative to the work of the dogs should be cautiously weighed, and with discriminating judgment. If you find from the facts and circumstances in the case, beyond a reasonable doubt, that the dogs were taken to the place occupied, prior to and at the time of the explosion, by the person, if any, who caused such explosion resulting in the death of Mike Baldizer; that at such place the dogs obtained the scent of such person; that, by reason of the breeding of said dogs, their nature, prior training, and experience, said dogs were capable of tracking or trailing a human being without aid or suggestion in the progress of their work, and that, unaided, they did so in the surroundings and conditions disclosed by the evidence in this case; that the dogs possessed the power to, and in their work aforesaid did, discriminate between the alleged trail on which they had first been laid, as stated above, and the trail or scent, if any, of any other person or thing which came within their range during the progress of their work, and did pursue *270from the beginning to the close of their work the trail made by one and the same person, and no other, if made by a person ; and you further find, from the evidence introduced upon the trial, beyond a reasonable doubt, that the immediate surroundings and conditions existing at the time and place when and where the dogs finally terminated their work, as shown by the evidence, clearly pointed to the defendant as the person who had made such trail, if any, then you may give to such evidence the weight, if any, you believe the same fairly entitled to, as a circumstance bearing upon the guilt or innocence of the defendant. Unless you so find, you should give no weight whatever to such testimony. ’ ’
The proper foundation appears to have been laid to admit the introduction of the testimony of the actions of the dogs, as a circumstance to be considered by the jury for what it was worth; and the court instructed the jury that it could only be considered for that purpose. Were it the only evidence tending to connect the appellant with the commission of the offense charged, I would unhesitatingly refuse to let a conviction rest upon it. But such is not the case. There was sufficient evidence to not only carry the case to the jury, but to sustain a verdict of guilty, entirely apart from this evidence regarding the dogs.
The judgment of the district court, in my opinion, should be affirmed.