(dissenting).
I think the judgment should be affirmed. In the majority opinion the facts are so embroidered around the edges and so embellished with unwarranted conclusions of the author as to make it appear that the bloodhounds were pursuing the sheriff instead of the defendant. A fair consideration of the evidence should dispel any such a conclusion.
Even astute counsel for the defendant did not so construe the evidence.
The dogs were placed on the scent at the point 49^£ feet south of the window through which the bullet passed that caused the death of decedent.
This point was 2.9 feet below a direct line extended from the point where the bullet struck the stove through the hole in the window through which the bullet entered. This spot was carefully guarded'and no one was permitted to touch it; south of this point and between the Bean house and the trader house occupied by defendant, some 1,750 feet to the south and west, there were several human tracks found in the dirt headed in a southwesterly direction; these tracks were located the morning after the homicide; during the night two men were placed in charge of the premises and guarded it with flashlights; they testified that no persons traversed the area to the south of the house during that night; there was evidence that the defendant had made threats against the decedent, some of which were made on the day of the homicide; defendant and decedent had had some difficulty in connection with machinery which they used in jointly operating a ranch; defendant desired to either buy Bean’s interest or to sell his interest to Bean, but was unable to reach any agreement with the decedent. There was also evidence that after the defendant was arrested and placed in jail he made a statement to one of the inmates in the jail that he got a gun and killed the decedent Bean; on the *388afternoon of April 2nd the bloodhounds owned by Mr. Talbot of Hamilton, Montana, were placed upon the track which appeared to have been made by a person kneeling on the ground at the point 49% feet south of the house; the bloodhounds turned about and started in a general direction south and southwest of the house and crossed the railroad tracks and highway No. 10 and proceeded from there further southwest to the trailer situated near the county road and which trailer was occupied by the defendant and his son; the hounds pursued the general course where the tracks of a human being were previously found; the dogs were diverted a few feet from the trail as it entered a small pot hole filled with cattails because it was easier walking, but the trail was picked up by the dogs on the opposite side of the pot hole from where the trail entered it; when the dogs reached the trailer the defendant was brought out of the trailer by the sheriff and the dogs exhibited a degree of friendliness for defendant, licking his hands and jumping upon him, which Mr. Talbot, the owner of the dogs testified they were taught to do when finding the persons they were trailing.
The courts are not in agreement as to the admissibility of so-called bloodhound evidence. The overwhelming weight of authority, however, holds that such evidence is admissible if there has been a proper foundation laid. The rule is stated in 20 Am. Jur., Evidence, section 362, page 331, as follows: “Considerable uncertainty in the minds of the courts as to the reliability of dogs in identifying criminals and much conflict of opinion on the question of the admissibility of their actions in evidence have existed. A survey of the cases, however, reveals that most courts in which the question of the admissibility of evidence of trailing by bloodhounds has been presented take the position that, upon a proper foundation being laid by proof that the dogs were qualified to trail human .beings and that' the circumstances surrounding the trailing were such as to make it probable that the person trailed was the guilty party, such evidence is admissible and may be permitted to go to the jury for what it is *389worth as one of the circumstances which may tend to connect the defendant with the crime.” See also, 22 C. J. S., Criminal Law, sec. 646, p. 988; Annotations in 94 A. L. R. 413, 42 L. R. A. 432, 35 L. R. A., N. S., 870, and L. R. A. 1917E, 730, and 1 Wharton’s Criminal Evidence, 11th Ed., sec. 380, p. 602.
Since the above annotations, one other state has joined the majority. That was done by Oklahoma in the ease of Buck v. State, 77 Okl. Cr. 17, 138 Pac. (2d) 115. The majority view therefore is supported by courts in the following states: Alabama, Arkansas, Florida, Kansas, Kentucky, North Carolina, South Carolina, Missouri, Ohio, Pennsylvania, Tennessee, Texas, Mississippi, Georgia, West Virginia, Louisiana and Oklahoma. The following cases reported since the annotation in 94 A. L. R., and perhaps others, have recognized the majority rule as being the correct one when proper foundation has been laid: Moore v. State, 1937, 26 Ala. App. 607, 164 So. 761; Orr v. State, 1938, 236 Ala. 462, 183 So. 445; Burks v. State, 1941, 240 Ala. 587, 200 So. 418; Rolen v. State, 191 Ark. 1120, 89 S. W. (2d) 614; Tomlinson v. State, 1937, 129 Fla. 658, 176 So. 543; Schell v. State, 1945, 72 Ga. App. 804, 35 S. E. (2d) 325; Mitchell v. State, 1948, 202 Ga. 247, 42 S. E. (2d) 767; State v. Lee, 211 N. C. 326, 190 S. E. 234; Kelly v. Commonwealth, 259 Ky. 770, 83 S. W. (2d) 489; Brummett v. Commonwealth, 1936, 263 Ky. 460, 92 S. W. (2d) 787; Short v. Commonwealth, 1942, 291 Ky. 604, 165 S. W. (2d) 177; Daugherty v. Commonwealth, 1943, 293 Ky. 147, 168 S. W. (2d) 564; Hinton v. State, 175 Miss. 308, 166 So. 762; State v. Green, 1946, 210 La. 157, 26 So. (2d) 487; and State v. Long, 336 Mo. 630, 80 S. W. (2d) 154.
Four states and British Columbia hold that such evidence is inadmissible but in some of them the cases are distinguishable. The case of Brott v. State, 70 Neb. 395, 97 N. W. 593, 63 L. R. A. 789, is usually cited as sustaining the minority view. Actually, however, the court indicated that for a proper purpose and under facts such as we have here, the evidence may be received, but rejected it in that case because it was sought by such evi*390clence to prove independent crimes and this without corroboration. The court in that case said: "The conduct of the dogs was, perhaps, rightly received, in connection with an admission made by Brott, as evidence tending to prove that he committed the crime charged in the information; but it was also received as proof of independent crimes which the state brought to the attention of the jnry, and to which the admission did not relate. ’ ’
The case of People v. Pfanschmidt, 262 Ill. 411, 104 N. E. 804, Ann. Cas. 1915A, is a leading case adopting the minority view. That was a case in which the dog was tracking a horse rather than a human being. The dog was not permitted to stay on the trail at all times but simply worked the crossroads; between the crossroads the dog was permitted to ride in an automobile. The court, however, in that case by way of dictum said that it would not consider bloodhound testimony in any case.
Indiana is another state relied upon as supporting the minority view. In the ease of Stout v. State, 174 Ind. 395, 92 N. E. 161, Ann. Cas. 1912D, 37, the court rejected such evidence. The evidence was not offered, however, by the state but the defendant sought to show that the bloodhound trailed another person from the scene of the crime. The court held that this was inadmissible but indicated .that if the defendant could or had offered other evidence to prove the guilt of the third person then the evidence might have been admissible.
In re Rex v. White, 37 British Columbia Law Reporter 43, such evidence was held inadmissible in a three to two opinion. The state of Iowa has gone both ways on the question. McClurg v. Brenton, 123 Iowa 368, 98 N. W. 881, 65 L. R. A. 519, 101 Am. St. Rep. 323; State v. Grba, 196 Iowa 241, 194 N. W. 250.
As to the character of the foundation that must be laid, the rule was well stated in Peigo v. Commonwealth, 103 Ky. 41, 44 S. W. 143, 145, 42 L. R. A. 432, 82 Am. St. Rep. 566, as follows: "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 *391scent 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 on 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.” To the same general effect are: Buck v. State, supra, and State v. Adams, 85 Kan. 435, 116 Pac. 608, 35 L. R. A., N. S., 870.
Here the foundation testimony was produced before the court without the presence of the jury. It consisted briefly of the following: George Talbot was produced as a witness who showed by his testimony that he purchased the two bloodhounds in question when they were about seven weeks of age; they were certified by the American Kennel Association; he had used the dogs for the following of human scents and lost persons ever since they were two months old; they had run on the average of three times a week; they have been put upon tracks after they were 40 hours old and followed them successfully; the dogs are the official dogs of the Lost Persons Foundation; Mr. Talbot explained in detail the manner and method of training the dogs; the result of the training of these dogs established for them an almost perfect record; he said they seldom see the person upon whose tracks they are laid; they have been trained so they can follow a trail even though it has been crisscrossed by other persons for the purpose of misleading them; the dogs in the past two years have been placed upon the trail of not less than 35 lost persons and found the persons in every instance, except when the person ceased to make a trail by getting into *392an automobile; he said that the bloodhounds trail by scent and that the tracks mean nothing to them; if the track of a lost person or man which they are hunting crisscrosses, the dog follows the hottest scent; on the afternoon of April 2nd he was careful to hold the heads of the dogs in the air by means of a leash until he reached the point where he desired to place them upon the trail; he placed them upon the trail at the point which had been carefully guarded, 49% feet south of the window, marked D on the state’s exhibit 2; as he did so, the dogs were facing the house and as soon as they obtained the scent they immediately swung around and started in a direction away from the house, following the general course of the tracks above referred to.
The evidence shows in detail how the dogs followed the general course to the trailer house occupied by the defendant some 1750 feet from the Bean house. The dogs are trained so that when they find the person whom they are tracking, they look for their reward in the way of food and exhibit pleasure and a liking for such person. They did this in the instance in question by jumping upon the defendant, licking his hands, wagging their tails, and manifesting their pleasure generally. Defendant attempted to explain the attitude of the dogs by testifying that he patted one of the dogs and said, “Nice dog,” but no other witness who was present corroborated him in that respect. It is clear, however, that if he did pat one of the dogs, it was after they had exhibited a friendliness to him. It was shown that Mr. Talbot has no financial interest in the use of the dogs in a criminal ease. He was simply paid his expenses and the expenses of his dogs in making the trip from Hamilton to Forsyth. The court, after hearing this evidence, determined that it was admissible. It was then repeated in the presence of the jury.
The suggestion that the dogs were supposed to have obtained the scent of the murderer somewhere in the area nearer the window than point D and where other people may have been prior to the arrival of the dogs is not justified by the record.
Mr. Talbot testified that when he arrived at the Bean house *393with the sheriff he went over to see what they had for the dogs to start on. He was shown the point which was marked D on state’s exhibit 2. He then went back to the car and “got the two dogs and brought them out with their heads high and dropped them on the track going towards the house or towards the window.” He further testified:
“Q. * * * Can you now start, go at the point where you lowered the dogs to the point D on the State’s Exhibit 2, in detail please and describe exactly what course, of conduct, just exactly what those dogs did from the very moment that you dropped them on the scent at that point?
“The Court: What do you mean, Mr. Haynes, by dropping or lowering? Mr. Haynes: I mean taking the dogs as I have understood the witness and I wish to be promptly corrected if I have misunderstood it; I have understood that when the dogs, the two bloodhounds, came out of the car that habitually as they were trained that he kept their heads up away from the ground and took them over to the point D where the scent was to begin as indicated to him by the Sheriff Dowlin and at that point dropped them on the scent or on the track. Now am I right, is that what you did? A. That is right.
‘ ‘ The Court: What way do you mean ? Mr. Haynes: I certainly don’t mean throw up, I mean he dropped them. Mr. Leavitt: He means he laid them on it, he laid them on the scent.
“Q. You laid them on the scent, is that right? A. I turned loose of them and I put their heads down. Mr. Haynes: Is that more satisfactory to Your Honor? Well then you may strike drop and put in turned them loose.
“Q. All right then Mr. Talbot, will you go ahead now and in detail describe the conduct of those dogs from that moment when you turned them loose on that track? A. Well they started right in trailing when I brought them out I dropped—
‘ ‘ Q. Use your own words. A. I dropped their heads on this scent or just a little ahead of where the mark was so that there wouldn’t be no confusion if somebody had walked in back to take a look, I dropped them a little bit farther towards the *394window on the track and from that they was headed towards the house and then they swung right around and come back and come through the fence or across a little field there. * # * ”
It is clear to me that if there were any deviation in the starting point from the- point marked D on exhibit 2, the same being what appeared to be where a person had kneeled, it was merely a matter of inches and that there is no real basis for the suggestion that the dogs picked up the scent somewhere other than from the point marked D on the exhibit or some other scent than that of the person who made the impression in the ground at point D.
It is my view that this evidence is admissible as a circumstance tending to show that defendant was at the scene of the crime, at or about the time the crime was committed. Standing alone, of course, this evidence is not sufficient to prove the guilt of defendant, but as above pointed out, there was ample other evidence including the positive admission of the defendant tending to connect him with the commission of the crime.
The purpose of such evidence was well stated by the Supreme Court of Kentucky in Blair v. Commonwealth, 181 Ky. 218, 204 S. W. 67, 68, as follows: “The evidence of the acts of bloodhounds in following a trail may be received merely as circumstantial or corroborative evidence against a person towards whom other circumstances point as being guilty of the commission of the crime charged.
“The admission of this class of evidence is therefore hedged about with abundant safeguards in the way of other and human testimony; and as long as these rules are adhered to bloodhound evidence is no more dangerous than any other class of circumstantial evidence.”
It is an erroneous notion to regard the hounds as witnesses. State v. Davis, 154 La. 295, 97 So. 449; State v. Brown, 103 S. C. 437, 88 S. E. 21, L. R. A. 1916D, 1295. It is their actions that are admissible in evidence as a circumstance to be considered by the jury. The witness is the trainer of the dogs and defendant’s constitutional rights are protected and preserved by the right to cross-examine the owner and trainer of the dogs. State *395v. Davis, supra; State v. Dickerson, 77 Ohio St. 34, 82 N. E. 969, 13 L. R. A., N. S., 341, 122 Am. St. Rep. 479, 11 Ann. Cas. 1181.
The situation is analogous to the well-known fact that a ewe sheep will reveal by her actions which one out of many hundred lambs all identical in appearance, is her offspring, absent as here any showing that deception was practiced upon her. Compare: I Wigmore on Evidence, 3rd Ed., sec. 177, p. 633; and State v. Grimsley, 96 Mont. 327, 30 Pac. (2d) 85.
The argument that dogs are not infallible is beside the point. As above noted it is the trainer who is the witness and not the dogs. If fallibility is to be made the test of admissibility of evidence, then our system of trials must undergo a drastic change.
One other circumstance in connection with this evidence should be noted. One witness testified that as the dogs demonstrated an apparent interest in the defendant, Mr. Talbot said: “That’s your man.” Obviously that was but the conclusion of Mr. Talbot and had timely objection been made it should have been excluded. But here there was but a general objection to all evidence of the action of the bloodhounds and a motion to strike all the evidence relating thereto.
There was no specific objection to the three words above quoted. There was no motion to strike these specific words except as they were included in the scope of the general motion to strike all of the evidence relating to the action of the bloodhounds.
In Patterson v. State, 191 Ala. 16, 67 So. 997, 998, the court said: “It is manifest that at least parts of the stenographic report were relevant and admissible under the familiar rule for impeaching a witness by showing statements, previously made, contradictory of testimony he has given on the hearing or investigation in progress. Those parts of the stenographic report which tended to contradict the testimony 'given by the defendants on the trial were admissible. The objection was addressed to the whole of the report offered. If any part of it was admissible, then the objection was due to be overruled. Hill v. *396State, 146 Ala. 51, 41 South. 621; Longmire v. State, 130 Ala. 66, 30 South. 413. There was no duty on the court to separate the admissible parts of the report from the inadmissible.”
In Timberman v. State, 107 Ohio St. 261, 140 N. E. 753, 754, the same question was considered as relating to an objection to certain evidence, a part of which was inadmissible and a part admissible. The court said: “However, the objection taken to this question was general only. No application was made to strike out this particular sentence. Part of the question was entirely competent, and only the one sentence italicized above was objectionable. It was the duty of the attorney for the defendant to make specific objection to incompetent testimony in order properly to raise the question before the trial court. Since that was not done, the testimony must be considered as if no objection stood upon the record.” Other cases taking the same view are: St. Louis, I. M. & S. Ry. Co. v. Hendricks, 48 Ark. 177, 2 S. W. 783; Brown v. Mitchell, 88 Tex. 350, 31 S. W. 621, 36 L. R. A. 64; State v. Lasecki, 90 Ohio St. 10, 106 N. E. 660, L. R. A. 1915E, 202; Wehrle v. General Motors Corp., Ohio App., 80 N. E. (2d) 702; Gutzman v. Clancy, 114 Wis. 589, 90 N. W. 1081, 58 L. R. A. 744; Carmichael v. Southern Bell Tel. & Tel. Co., 162 N. C. 333, 78 S. E. 507. And see 53 Am. Jur., “Trial” sec. 140, p. 124.
I think the court properly admitted the evidence of the action of the bloodhounds.
The majority opinion holds that it was error to permit the state to introduce in evidence plaster casts of the footprints found near the scene of the crime and that it was error to receive in evidence new overshoes which defendant placed on his feet and compared with the plaster easts of the footprints. It is suggested that there was no proof that defendant made the footprints. There was evidence that defendant made the statement that he shot the deceased. It is clear that whoever shot deceased must have made some tracks south of the house where the shooting occurred; facts may be shown by circumstantial evidence.
The general rule governing this question is stated in 20 Am. *397Jur., Evidence, sec. 360, p. 330, as follows: “A witness may testify in a criminal prosecution as to human tracks found upon the ground at the place of a crime and as to their size, location, or any peculiarity that he may have observed about them. Similarly, the description and measurements of tracks at the scene of a crime, which correspond with the shoes worn by the defendant and have been introduced in evidence, are competent. ’ ’
The court in State v. Fuller, 34 Mont. 12, 85 Pac. 369, 372, 8 L. R. A., N. S., 762, declared: “There can ,be no controversy as to the general rule that footprints or other marks or tokens found upon or near the place of the crime may be admitted to connect the accused with it and identify him as the guilty person, if the evidence tends to show that he left such evidences behind him.”
This was merely a means of giving the description and size of the tracks for comparative purposes which is proper. The fact that the overshoes may and doubtless would fit many persons simply goes to the weight, of the evidence. "Were we to say that this species of evidence was inadmissible, I think its admission was harmless error. It seems unbelievable that any juror would have been influenced to find defendant guilty of murder because of the introduction of the overshoes or plaster casts in evidence. It should be noted too that defendant made no objection to the procedure adopted, by having him put the overshoes on in the presence of the jury, and to the testimony given by him that they fit him, nor was there any objection made to the testimony and the demonstration made that the overshoes fit the plaster east of the tracks. The only objection made was to the introduction of the overshoes themselves after these comparisons had been made and the general motion to strike the evidence long after it had gone in without objection. The defendant himself did not testify that the overshoe did not fit the plaster cast.
The record shows the following:
“Q. Very well, now I hand you one of the overshoes, State’s Exhibit No. 34 and ask you to fit it and to fit it to State’s *398Exhibit No. 10 as to the heel and see what you find. (Witness putting overshoe on east) A. Similar.
“Q. Seems to fit, doesn’t it? A. Well did you have any trouble, Mr. Haynes, of finding a pair of overshoes that would fit those tracks?”
No objection was made by defendant to this comparison upon which he could predicate prejudicial error as found in the majority opinion.
If the overshoe does not fit the plaster cast as the majority opinion states (which I do not concede) then that fact was as obvious to the jury as to the members of this court and I think it is rather far fetched to conclude that any right of defendant was prejudiced by the admission of such evidence even if it should have been excluded.
I think the judgment should be affirmed.