cused was rightfully on the premises, having entered by the permission or command of the owner, or of some person who had the right to permit,95 or command him, and stole while there, his offense is larceny only.9

96

Hence, any evidence is relevant which tends to prove or disprove the fact that the entrance was made with the owner's consent. The ownership of the property stolen," its value," the number of articles taken," the ownership of the building broken into,100 or the date of the burglary,' is not an essential element of the crime. These facts, therefore, need not be proved precisely as alleged. The ownership of the building broken into may be properly inferred from proof that the party alleged to be the owner was in possession, but the allegation of possession must be sustained by evidence of actual occupancy and not merely by a constructive possession. An allegation of possession by a corporation does not require proof of the incorporation unless this fact is expressly denied by a special plea.*

$374. Correspondence of foot-prints with foot-wear of accused.The presence of recently made and unaccounted for footprints of

party. As the entrance was with the owner's consent, it was held that a conviction of burglary could not be sustained. Love v. People, 160 Ill. 501, 43 N. E. 710, 32 L. R. A. 139.

People v. McCord, 76 Mich. 200, 42 N. W. 1106.

*Colbert v. State, 91 Ga. 705, 17 S. E. 840. Contra, People v. Barry, 94 Cal. 481, 483, 29 Pac. 1026.

State v. Tyrrell, 98 Mo. 354, 11 S. W. 734; Brown v. State, 72 Miss. 990, 18 So. 431; People v. Edwards, 59 Cal. 359; State v. Hutchinson, III Mo. 257, 263, 20 S. W. 34; Calloway v. State, 50 Tex. Cr. App. 72, 94 S. W. 902. See Elliott Evidence, § 2913. "Farley v. State, 127 Ind. 419, 26 N. E. 898; Mason v. State (Tex. Cr. App., 1906), 98 S. W. 854; Boyd v. State, 4 Ga. App. 273, 61 S. E. 134.

" Johnson V. Commonwealth, 87 Ky. 189, 7 S. W. 927, 10 Ky. L. 100.

100

'State v. Lee, 95 Iowa 427, 64 N. W. 284; State v. Porter, 97 Iowa 450, 66 N. W. 745; State v. Horned, 178 Mo. 59, 76 S. W. 953; Boyd v. State, 4 Ga. App. 273, 61 S. E. 134; Scoville v. State (Tex. Cr. App., 1904), 81 S. W. 117.

Evidence as to time of offense, see Elliott Evidence, § 2914. Testimony of accomplice, 98 Am. St. 172.

1 State v. Dawkins, 32 S. Car. 17, 10 S. E. 772; State v. Daniels, 122 La. 261, 47 So. 599.

2 State v. McGuire, 193 Mo. 215, 91 S. W. 939; Hall v. State (Ga. App., 1909), 66 S. E. 390.

8

man," or beast, or of wagon tracks,' in the curtilage of a house which has been entered, or on a road leading to it, may always be considered in determining whether a burglary has been committed. As the accused must not be compelled to furnish evidence incriminating himself, or to testify against himself, he can not be compelled to submit to a comparison of footprints in open court. Nor can the accused be compelled to place his foot in a shoe-track found in the vicinity of the crime. His refusal to do so can neither be proved against him nor commented on by counsel,1o while, generally, if he is forcibly compelled to do so, a witness, who was present at the comparison, cannot testify to the results. But it may always be proved that the accused voluntarily went to the locus in quo and placed his foot in footprints found there and that his foot fitted the footprints perfectly.12

10

A distinction, however, was made where the officer having charge of the prisoner took off his shoes without his consent, or took shoes found in the house of the accused and compared them with the tracks. The officer was allowed to testify to the results, the court basing its ruling on the admitted right of police officials "England v. State, 89 Ala. 76, 8 So. 146; Moss v. State, 152 Ala. 30, 44 So. 598; State v. Daniels, 134 N. Car. 641, 46 S. E. 743; State v. Freeman, 146 N. Car. 615, 60 S. E. 986; Leonard v. State, 150 Ala. 89, 43 So. 214; State v. Arthur, 135 Iowa 48, 109 N. W. 1083; Doss v. State, 50 Tex. Cr. 48, 95 S. W. 1040; State v. Fuller, 34 Mont. 12, 85 Pac. 369, 8 L. R. A. (N. S.) 762n; Davis v. State, 152 Ala. 82, 44 So. 545 (arson). Contra, Kinnan v. State (Neb., 1910), 125 N.

of mud in court and to request defendant to place his foot in it. The court said: "In the presence of the jury the prisoner is asked to make evidence against himself. The court should not have permitted the pan of mud to have been brought before the jury, and the defendant asked to put his foot in it. We are satisfied the jury was improperly influenced thereby. And it is no sufficient answer that the judge afterwards told the jury that the refusal to put his foot in the mud was not to be taken as evidence against him." Cf. Walker v. State, 7 Tex. App. 245, 32 Am. 595.

to search the clothing of prisoners and to testify to what they find.13

The reception of such evidence does not deprive the accused of his constitutional right to refuse to testify against himself in any criminal proceeding.1

The accused may waive his rights and submit to a voluntary comparison,15 by putting his foot in tracks found in the neighborhood of the crime.16 His offer to place his foot or shoe in the footprints may be proved in his favor," but if he does so he cannot object to evidence that it seemed to fit.18 A witness who has measured the tracks of man or beast and compared his measurements with the footwear of the accused, worn about the time of the crime, or of a horse owned by him, may testify to the results and may state that in his opinion a correspondence exists in size and shape.

19

A witness cannot testify that he thought when he first saw the

"State v. Graham, 74 N. Car. 646, 649, 21 Am. 493; Myers v. State, 97 Ga. 76, 25 S. E. 252; Krens v. State, 75 Neb. 294, 106 N. W. 27; Hargrove v. State, 147 Ala. 97, 41 So. 972, 119 Am. St. 60; Guerrero v. State, 46 Tex. Cr. 445, 80 S. W. 1001; State v. Williams, 120 La. 175, 45 So. 94. The court declined to decide whether the policeman could compel a prisoner to place his foot in the track.

10

with tracks near the scene of the crime.

18

8 Potter v. State, 92 Ala. 37, 40, 9 So. 402.

19 State v. Jeffries, 210 Mo. 302, 109 S. W. 614; People v. Wolcott, 51 Mich. 612, 615, 17 N. W. 78; Commonwealth v. Pope, 103 Mass. 440; Harris v. State, 84 Ga. 269, 10 S. E. 742; State v. Reitz, 83 N. Car. 634, 636; Cooper v. State, 88 Ala. 107, 110, 7 So. 47; Miller v. State, 91 Ga. 186, 16 S. E. 985; Porch v. State, 50 Tex. Cr. 335, 99 S. W. 102; Thompson v. State, 45 Tex. Cr. 397, 77 S. W. 449; Johnson v. State, 55 Fla. 46, 46

Burks v. State, 92 Ga. 461, 17 S. So. 154; Alford v. State, 47 Fla. 1, E. 619.

17

36 So. 436; Parker v. State, 46 Tex. Bouldin v. State, 8 Tex. App. Cr. 461, 80 S. W. 1008, 108 Am. St. 332, 335. Contra, Potter v. State, 92 1021; Smith v. State, 45 Tex. Cr. 405, Ala. 37, 40, 9 So. 402. Compare Har- 77 S. W. 453; Weaver v. State, 46 grove v. State, 147 Ala. 97, 41 So. Tex. Cr. 607, 81 S. W. 39; State v. 972, 119 Am. St. 60, where shoes Arthur, 135 Iowa 48, 109 N. W. 1083; that the accused admitted he wore State v. Langford, 74 S. Car. 460, 55 about the time of the burglary were S. E. 120; Moore v. State, 51 Tex. taken from his house and compared Cr. 468, 103 S. W. 188; State v. Norman, 135 Iowa 483, 113 N. W. 340.

tracks, and still believes, they were made by the defendant, or that they were like those of the defendant. This is only an expression of an opinion upon a question properly to be determined by the jury.20 But a witness may testify that the ground in a highway near the scene of the crime and the residence of the accused was so hard that no track could be made. The accused may introduce any evidence tending to show that it is physically impossible that he made the tracks,22 or that he had never worn or possessed a shoe that would fit them.

21

§ 374a. Evidence obtained by trailing with bloodhounds.-The well-known instinct possessed by certain breeds of dogs, commonly known as bloodhounds, which enables them to track persons or objects wholly by their sense of smell, has caused them to be employed in tracking persons accused of crime and fugitives from justice from the earliest times. The exceptional keenness of scent, sagacity and capacity for training of these animals, their perseverence and intelligence in following the fugitive are well known. And, however we may doubt the humanity of employing animals whose nature is, or may upon occasion be, so ferocious to detect and apprehend criminals, there can be no doubt that the results often obtained can be usually relied upon. Thus it has been held that testimony that bloodhounds of pure blood, and experienced in tracking human beings, were put upon the trail at the scene of a crime such as arson, homicide, rape or burglary, and followed the trail to the home or other abiding place of the accused is admissible.23 The evidence of a witness to these facts, if,

20 State v. Green, 40 S. Car. 328, 18 S. E. 933, 42 Am. St. 872; Collins v. Commonwealth (Ky.), 25 S. W. 743, 745, 15 Ky. L. 691; State v. Senn, 32 S. Car. 392, 400, 11 S. E. 292; Heidelbaugh v. State, 79 Neb. 499, 113 N. W. 145; Terry v. State, 118 Ala. 79, 23 So. 776. The witness must state the facts showing identity. The same rule applies to horse tracks. State v. Wideman, 68 S. Car. 119, 46 S. E. 769.

22 State v. Melick, 65 Iowa 614, 615, 22 N. W. 895.

23

Spears v. State, 92 Miss. 613, 46 So. 166; State v. Hunter, 143 N. Car. 607, 56 S. E. 547, 118 Am. St. 830; Davis v. State, 46 Fla. 137, 35 So. 76; Parker v. State, 46 Tex. Cr. 461, 80 S. W. 1008, 108 Am. St. 1021: Hargrove v. State, 147 Ala. 97, 41 So. 972, 119 Am. St. 60; State v. Freeman, 146 N. Car. 615, 60 S. E. 986; State v. Peebles, 178 Mo. 475.

State v. Sanders, 75 S. Car. 409, 77 S. W. 518; Simpson v. State, 111 Ala. 6, 20 So. 572; State v. Spivey (N.

56 S. E. 35.

at the same time, he was acquainted with the dogs and knew them to be trained and experienced, though not substantive proof of guilt which will alone and uncorroborated sustain a conviction, is admissible as corroboration of other evidence as to the identity of the accused. In order that such evidence may be received there must be preliminary proof, usually coming from a witness who accompanied the bloodhounds, that they are animals of pure blood, previously trained to trail human beings, that they have been tested by trailing other men and found reliable, and that they were laid on the track at such a time and under such circumstances as tended to show the track or trail was actually where the accused had been.25 In a case of arson the testimony showed the dog was put on the trail on the afternoon after the fire.26 On the other hand, if the evidence of the prior training of the dogs is unconvincing, so that the court is not convinced that they are acute of sense or trained in the tracking of human beings this evidence must be rejected. It ought to be rejected where the preliminary proof shows that no care was taken to prevent the hounds from following the tracks of other persons who since the time of the crime had frequented the scene of it. And where, with these circumstances, it also appears that no opportunity was given to the hounds to obtain the scent of any article of wearing apparel belonging to the supposed criminal, and the dogs were on the trail accompanied by a large and noisy crowd, whose cries urging them on confused them, and also that it was from time to time necessary to urge them on, it would be reversible error to admit proof of the fact that they finally trailed the defendant to his place of residence.27 The accused should always be permitted, through counsel, to cross-examine the witness who testifies to the training and experience of the dogs to bring out any circumstances to show that they were unreliable and unskilled. He may cross-examine as to the circumstances of the trailing to show that its result are

Car., 1909), 65 S. E. 995. Evidence of trailing by bloodhounds, see 42 L. R. A. 432, note.

State v. Hunter, 143 N. Car. 607, 56 S. E. 547, 118 Am. St. 830.

State v. Dickerson, 77 Ohio St. 34, 82 N. E. 969, 122 Am. St. 479, 13

L. R. A. (N. S.) 341; State v. Hunter, 143 N. Car. 607, 56 S. E. 547, 118 Am. St. 830.

20 Davis v. State, 46 Fla. 137, 35 So. 76.

27

7 Sprouse v. Commonwealth (Ky., 1909), 116 S. W. 344.