While the foregoing represents the majority opinion, I cannot concur therein for two reasons: (a) I do not think that the evidence is sufficient to authorize the verdict; and (b) I think that the first special ground of the motion for new trial, as set out in the second division of the opinion, was a sufficient assignment of error.
(a) The only evidence that tends to place the accused at the scene of the crime at the time of its commission is the testimony in reference to tracks leading therefrom to the sawmill, and the evidence of the conduct of the bloodhounds. Unless this evidence is legally sufficient to establish the fact that the accused was the one who made those tracks, the case against him would not be sufficient to legally establish his guilt. There being no particular characteristic *Page 326 about the shoe tracks that would differentiate them from any other tracks of another shoe of the same size, such evidence would not of itself meet the requirements of the law in reference to the rules governing convictions based upon circumstantial evidence. Cummings v. State, 110 Ga. 293 (7) (35 S.E. 117); Patton v. State, 117 Ga. 230 (43 S.E. 533);Williams v. State, 123 Ga. 278 (51 S.E. 344).
As to the conduct of the track-dogs in trailing from the scene of the crime to the sawmill-boiler room, I can not attach much, if any, probative value to the evidence. The evidence for the State disclosed that, previous to the dogs trailing into the boiler room, at least two persons other than the accused had been in there that morning, and that many others had been on the saw-mill premises. Evidence of the conduct of track-dogs is not looked upon by the courts as having much probative value. While this court has never passed upon this subject, the Court of Appeals in Aiken v. State, 16 Ga. App. 848 (86 S.E. 1076), in determining the weight to be given such evidence, stated, "that the proof of trailing is not proof of guilt, but only a circumstance tending to show whether the defendant had been at the scene of the crime, — a circumstance of no value except as corroborative of evidence of guilt." Also, that "evidence as to the acts of the bloodhounds is to be received merely as cumulative or corroborative of evidence against the person to whom other circumstances in proof point as being guilty." A compilation of other cases discussing the weight to be given evidence of the conduct of track-dogs will be found in the annotations in 42 L.R.A. 432; 35 L.R.A. (N.S.) 870; L.R.A. 1917E, 730; 3 Ann. Cas. 897; 10 Ann. Cas. 1127; Ann. Cas. 1915A, 1193; and 94 A.L.R. 413. Inasmuch as the only evidence connecting the accused with the commission of the crime is that of tracks and the conduct of track-dogs, and in view of the law as to the weight of such evidence, I do not think the evidence sufficient to authorize the verdict. Other than this evidence, there is nothing to connect the accused with the commission of the crime. Other circumstances proved at the trial showed nothing more than suspicious conduct.
(b) In my opinion the exception set forth in the second division of the majority opinion was sufficient to present the question there made for determination. The cases cited, based on the failure of *Page 327 the court to charge, are all instances where the exceptions were too general and did not specifically designate the complaint, or were susceptible to the interpretation that the exceptions could apply to one thing as well as another. No such construction can be applied to the exception in the instant case. In Aiken v.State, supra, wherein the admission of track-dog evidence was approved, as a safeguard in the admission of such testimony the court imposed as a condition for its use, "that the attention of the jury will be called to the fact that the proof of trailing is not proof of guilt, but only a circumstance tending to show whether the defendant had been at the scene of the crime, — a circumstance of no value except as corroborative of evidence of guilt." This is the law, and the only law, in this State as to the weight to be given to evidence of the conduct of track-dogs. The exception points out that the court erred "in failing to charge the jury on the weight and consideration which should be given to the testimony relating to the conduct of track-dogs," and alleges "that the testimony as to the conduct of track-dogs constituted one of the chief and controlling issues in the case, and was the only testimony which could in any way connect movant with the scene of the crime." In Hudson v. State, 26 Ga. App. 596 (4), where the exception was, "because the court wholly failed to charge the jury the law of involuntary manslaughter in the commission or performance of a lawful act, where there has not been observed necessary discretion and caution, or with due caution and circumspection," the exception was held defective because there was no allegation "that the evidence was such as to require a charge on involuntary manslaughter." Also, in Burney v. State, 142 Ga. 812 (83 S.E. 937), where the only assignment of error was that "the court erred in not charging the law of voluntary manslaughter," this was held to be a sufficient assignment because "it called attention to parts of the evidence touching previous difficulties and transactions as showing the basis for such a charge." I think that the instant case meets the requirements of the law. All that the Code, § 6-901, requires is that the "bill of exceptions shall specify plainly the decision complained of and the alleged error." It is a rule for a substantial purpose, not a mere technical pitfall to catch the unwary. It is a good assignment of error where it is sufficiently plain for the trial judge, whose judgment is sought to be reversed, to *Page 328 understand the errors complained of, so that he can make such facts appear, or require such evidence and records to be brought to this court as may be necessary for a proper consideration of the alleged error; and where it is specific enough to inform the adverse party what he must meet in this court; and where it presents a clear-cut question for this court to decide, and not an indefinite complaint to wander through in search of questions to determine and errors to reverse. I am authorized to say that Mr. Justice Wyatt concurs in this dissent.