delivered the following dissenting opinion:
I concur in the reversal of the judgment in this case. But dissent from so much of the majority opinion as holds that the trailing or proven trailing of the defendant by a bloodhound can be introduced as evidence! upon the trial of such] person charged with any crime. It is true that the majority opinion so restricts such proof and requires SO' many condi-, tions precedent that if the opinion in question should be* strictly adhered to no great injustice would very often result from evidence admitted under the ruling in question.
It, however, seems to me with due respect to the majority opinion that such a rule of evidence is contrary to all other rules of evidence, and, if not in violation of the letter of the Constitution, is manifestly in violation of the spirit as heretofore expounded by this court. Such a rule seems to me an innovation upon all the ¡heretofore established rules of testimony. The use of bloodhounds was, perhaps, necessary to efficiently and effectually uphold the institution of slavery, as well as to aid in the arrest and capture of persons accused of crime in the dark ages. In such cases, however, the object sought was the arrest or capture of known fugitives. If the dog in fact took up and followed the trail of a fugitive and found him, or aided his pursuers to find him, the object was accomplished, and there could be no mistake as to ^whether he was the party sought or not. 'His guilt and right of capture having been theretofore established, and in fact being *53•unquestioned. If the hound took the wrong trail and brought to bay the wrong party that fact would be ascertained so soon as the pursuers reached the party, and the utility of the hound in that regard, then ceased. It is now proposed to use the hound not to capture a fugitive, but to ascertain or furnish evidence to convict some citizen of crime. It seems to me that this new use of the bloodhound is a radical departure from the former purposes for which they were used; but whether this be so or not, it seems to me that neither the life not liberty of a citizen should be taken away, or even jeopardized by the mere fact that some person testified that the hound was well trained to track human beings, etc., and that he had trailed the accused from the scene of the crime to the habitation of the accused, or until he came upon the accused party. There is danger that the effect of the majority opinion will likely be to greatly promote the raising and training of bloodhounds, or hounds that will be called bloodhounds. It is a well-known fact that the owners of hounds, as well as other property, usually hold such property in high esteem; and as the owner or trainer of hounds will be engaged in the business for pay, it will be greatly to their interest to always have well trained hounds. In fact, I presume, there will be none but trained and expert hounds in a few years; at least such will be the opinion of their owners for it would be utterly useless to have any other sort.
It is common tradition, and doubtless believed by quite a large number of persons, that bloodhounds are capable of wonderful feats of trailing. In fact the many wonderful stories told of the achievements of bloodhounds (mostly in the imagination of those originating them) have instilled into *54the minds of quite a number of persons such wonderful notions of the unerring, if not infallible knowledge and "intelligence of the hounds, that the fact the hound said that a certain person had lately been at the place where the crime was. committed would be the most conclusive proof that could be produced.
If it should even be conceded that every owner and trainer of hounds would be perfectly fair and impartial in endeavoring to strike the trail only of the party who- had been at the scene of the crime, and likewise impartial in his testimony as to the expertness of the dog, yet such evidence is entirely too vague and uncertain to be allowed to jeopardize the liberty of a free man. It seems from common history, as well as -the proof in this case, that the bloodhound is supposed to be capable of taking up and following1 the'trail of a human being that has been made from twenty-four to forty hours. If that be true, and it is unreasonable, then it must necessarily follow that the hound aforesaid could take up the scent of a man who had passed within a quarter of a mile of the place a few hours before the hound was taken to- the place to find the scent. I think this conclusion necessarily follows. Take for example the case at bar. It seems that the barn was located in an open field, and the prosecution would have us believe that many hours thereafter the hound was able to take the trail and follow it. It is reasonably certain that a man wearing shoes would leave less scent on the ground to remain for twelve or fifteen hours than he would leave if going through, timber. It therefore follows-, as I think, that if a hound was taken to the scene of the crime, or supposed-crime, and any person had passed -shortly before1 the arrival *55of the dog within a quarter of a- mile of the place, especially if his route lay through timber, the dog finding no scent at the point where he was taken to search for same, and knowing, if he knew anything, that he was desired to trail some human being, he would naturally go to the place and in- the direction of the scent, or in other words would find the trail by reason of his acute scent of some person who had passed sufficiently near the place to enable the hound to take up the scent. It would be impossible to demonstrate whether or not he found the actual trail at the 'spot to which he was taken, or whether, as all dogs will do when it is sought to put them on a trail, he commenced hunting for one, and so continued until a trail was found in that vicinity.
It may also be assumed as certain that the hound would take up the first trail or follow the first trail that peached or affected1 his olfactory nerves after it was made known to him that he was there for the purpose of trailing somebody. I ¡do not think it is possible to establish the. fact that the Ihound will not quit the first trail that he may take up and go off with another which he might happen to fall in with or across. ¡Doubtless his keeper would often be of the opinion that the hound would never take up a trail other than the -one he first took.
I do not think that the evidence as to what the hound said or indicated should ever be admitted as testimony for the further reason that there is too much danger of an innocent person being convicted, or at least arrested and permanently disgraced by the . admission of such testimony. This case illustrates the danger alluded to. From the evidence in this case it is highly probable that quite a number *56of persons wont that very night to the dormitory, or to the house opposite the dormitory, and if they happened to pass by or near the ba,rn the dog of necessity was as apt to' take one trail as another, and hence there would be no sort of certainly in his trailing the criminal, if any there was. To illustrate further, it is learned from common rumor and from the press that a great many toll-gates have been lately destroyed, and it seems very difficult to ascertain who are the ¡guilty parties. The gates are on the public highway where persons pass, and have the right to pass and re-pass, yet if a bloodhound should be taken to the scene of the crime within a reasonable time thereafter for the purpose of trailing the guilty party, he would be almost certain to find some trail, and trail some person to his home, and after having been sufficiently shown to be an expert, etc., his testimony ■would be admitted to fix the guilt upon some party perhaps entirely innocent, and who in the exercise of his right had passed that wmy. The same may be said as to a large number of crimes supposed to have been clandestinely committed, or in fact have been committed. Many houses and barns are burned down. Some fires are of incendiary origin, while a number are the result of accidents or carelessness; yet under the majority opinion in this case, it would seem that if an expert hound trailed a party from the scene of the burning to his home, or place where he was known to have been shortly after the fire, that fact might be proven in evidence against him, although in fact he might not have been there at all, or if he had been, had simply been a casual passerby. (Such evidence should not be admitted for the reason that the defendant is not permitted to cross-examine the *57witness., wbo in reality is the dog, whether he is the legal witness or not. I am aware that it has been held that you could prove dying declarations against the defendant, and it ¡has been said that he has the constitutional privilege of meeting the witness face to face, because the party testifying is the one who is reciting the dying declarations, but the admission of the statement or trailing by the hound is not a parallel case. The trailing of the hound, if evidence at all, must be upon the supposition that he took the track at the scene of the crime and followed it, but the defendant has no chance to inquire of the hound how far from the place did he really find the trail, or did he cross any other or find any others. If a person was testifying to having tracked the' defendant from or about the place, he could be cross-examined upon that subject to know whether there was any other track, and winch appeared to be the freshest, and size, and whether the trail he was following crossed or fell in with other trails. Not so with the dog. iHe has had his say and left. There is another familiar rule of law, that A, a witness, will not be allowed to testify that B told him that he saw the defendant at the place, or that he trailed him or saw him going from the scene of the crime; but it seems to be contended in this case that A* may tell wha.t the dog said about it. A person may be murdered in a highway or road that is rightfully traveled by numerous persons, twenty-five or fifty persons may have passed within less than a dozen hours, and upon the discovery of the crime a bloodhound may be brought there, and, if he has any of the attributes which he is generally credited with, he will certainly find some trail, and land somewhere. W.ould it be *58right to allow that fact to be proven against the party accused of the murder? If such evidence be admitted, it seems to me that a man might in fact be hung without any other evidence than the mere fact that the bloodhound was proven to have taken up the trail at the scene of the murder and fallowed it to the house of the defendant. Such evidence must tend to establish his guilt, else it could not be admitted, and if the jury upon such evidence found him guilty how could this court reverse? It will not do to say that the jury will not convict a party upon such testimony. As matter of fact and common history, some party is very likely to be suspected of the crime, and after suspicion to a greater or less extent permeates the community, but little additional evidence is required to convict the accused, especially if he. be defenseless or destitute of friends and facilities for making a defense.
It seems that if the conditions described in the opinion were complied with, the fact that the hound trailed a person from the sicene of the crime would be sufficient to authorize a warrant of arrest, and would be such probable cause as to protect the party procuring the arrest, and thus a citizen might be put to great expense, mortification and disgrace without any evidence at all against him, except the trailing of the hound, and have no redress for any of the wrongs so inflicted. As before intimated it seems to me that the use of the bloodhound properly belonged to the dlays of slavery and of the bloody criminal code of tbe dark ages, and inasmuch as the institution of slavery and the code aforesaid have ceased to exist, the hound should be relegated to innocuous desuetude.