# Aaron v. State

> Supreme Court of Alabama · July 14, 1960 · 271 Ala. 70

URL: https://www.frixlaw.com/law-library/cases/9694005

## Case

- **Full name:** Drewey AARON v. STATE of Alabama
- **Court:** Supreme Court of Alabama
- **Decided:** July 14, 1960
- **Citations:** 271 Ala. 70; 122 So. 2d 360; 1960 Ala. LEXIS 421
- **Precedential status:** Published
- **Opinion:** Dissent by Merrill
- **Judges:** Livingston, Simpson, Stakely, Coleman, Goodwyn, Merrill
- **Cited by:** 88 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9694005

## Opinion text

MERRILL, Justice
(dissenting).
I would affirm the judgment of the circuit court.
The majority reverses on one question and answer taken from the testimony of Clyde Carpenter, the “dog warden” at Kilby Prison, a witness for the state. The question and answer held to constitute reversible error read:
“Q. Now, what significance did you attach to the fact your dogs stopped there, what conclusions do you draw from that?
“A. Well, the man got off the ground there, he rode off or something.”
Shortly thereafter, the following occurred:
“Q. You say at that point here where you marked the red ‘X’ on the map is where they lost their scent ?
“A. That’s right.
“Q. That is the point at which the person they were tracking seemed to have gotten off the ground and left no scent?
“A. That’s right.”
Then, on cross-examination, the following occurred:
“Q. I believe you said on the Stand further that based on your knowledge of hounds you then assumed the person was no longer on foot?
“A. That’s right.
* * * * * *
“Q. And you assume at that spot the person they were trailing was no longer on foot?
“A. That’s right.”
Since there was no objection to any of this testimony, I have listed all the evidence in the record pertaining to this point. I think a fair interpretation of this evidence is that the dogs lost the scent of the person they were tracking because he got off the ground at this particular spot. He had already testified that the scent of a person settles along the ground or on anything he touches and remains there for several hours and he also testified that the dogs did not ever lose a trail “unless a man gets on something or gets off the ground.”
Under the automatic appeals statute, this evidence to constitute reversible error must have been “seriously prejudicial to the rights of the appellant.”
I am unable to see any prejudice. The only possible damage this testimony could have done to appellant was to place him in *86 the area from whence a car was seen to back out. Before the dog warden had testified to any of the quoted testimony, he had 'already said that the dogs had followed the trail from the home of prosecutrix “back into this area where the car was parked.”
The undisputed evidence shows that Deputies Lifford and Stearns saw an automobile back out from the spot where the dogs lost the scent, drive away, and they followed in hot pursuit for one and seven-tenths miles, that the vehicle was overtaken and stopped, and it was being driven by defendant, the only occupant of the car. It was also undisputed that they showed the “dog warden” the spot where the car had backed out of the clearing, which was the same place where the dogs lost the scent.
Thus, we see that the same inference that appellant was in this particular area comes from other competent evidence, which was also undisputed, and appellant could not have been seriously prejudiced by the question and answer even though it be conceded, which I do not, that they were not proper. Our statute says that “the judgment of conviction must not be reversed because of error in the record, when the court is satisfied that no injury resulted therefrom to the defendant.” Tit. 15, § 389, Code 1940.
The majority opinion rests exclusively on the case of Richardson v. State, 145 Ala. 46 , 41 So. 82, 83 . There, the question was “Why did the dogs quit and leave the trail and go out into the field?” The trial court sustained the objection saying “that the witness could not testify as to why they did so, unless the witness was thoroughly acquainted with their habits and training.” Without another question, the witness stated: “From what I know of these dogs, I would say that the reason the dogs quit the trail and went out into the field was because there was a body of men out in front, and the dogs expected to find the person they had been trailing.” (Emphasis supplied.)
The original record has been examined, and it shows no other proceedings between the observation of the trial judge and the answer of the witness. Since there was no showing that the witness was “thoroughly acquainted” with the dogs’ habits and training after the objection was sustained, it is certain that the words “From what I know of these dogs” did not qualify him as an expert. The trial court should have excluded the answer of the witness. It is elementary that a nonexpert witness should not be permitted to give his opinion in the usual case, the question of insanity excepted. 6 Ala.Dig., Criminal Law, ^ 448(1); 9 Ala.Dig., Evidence, ®=>471(2).
Moreover, I think there is a valid distinction in the statements made by the witnesses in the two cases. There, the witness testified as to what the dogs expected to find off the trail. This was obviously objectionable. It was his conclusion as to the dogs’ conclusion, if such they can have. Here, the dog warden merely stated in effect that the dogs stopped because the scent was lost and the man must have gotten off the ground at that spot. And the only inference from the undisputed evidence is that the man did drive away from that spot by himself in an automobile.
In the Richardson case, the court said: “The witness could not know why the dogs went into the field.” Then further, it was said:
“ * * * jj- may ke ^ opinion given as to the reason why the dogs left the woods and went into the field where the men were was derived from facts within the knowledge of the witness, but the facts were not disclosed.' He would no doubt have been allowed to state any facts within his knowledge from which the jury might have inferred the abandonment of the trail was induced by an expectation that the person sought would be found among the crowd of men in the field, but the inference must be drawn by the jury. The witness could not properly be allowed to substitute himself for the jury, and to draw and state the conclusion in their place and stead.”
*87 Thus, we see that the Richardson case was devoid of any disclosed facts that supported the “reason why the dogs left woods and went into the field.” But here, we do have facts to show the reason the dogs stopped at the place they did. The undisputed evidence shows that the dogs came to a certain place and stopped; they never lost a trail “unless a man gets on something or off the ground;” that the trail led to “this area where the car was parked,” that the car backed out of this dead-end area, was followed and pursued, and the defendant was driving the car, and the witness was taken to the area and shown where the car had backed out. These facts ■ were ample to take this case out of the rule of Richardson v. State, 145 Ala. 46 , 41 So. 82 .
Finally, it has always been my understanding that a witness, of special knowledge or skill on a subject outside the ordinary realm of human experience, could state his inference from facts observed by him, as to matters connected with his specialty. The dog trainer testified that he had been training and handling bloodhounds to trail men for twenty years, that the dogs he used were highly trained dogs, that the dogs struck a trail at the back door of the home of the prosecutrix, and followed it until they came to the dead-end road and stopped. (This was the identical place from which other witnesses saw defendant back his car from and gave chase.) The dog trainer’s conclusion that “the man got off the ground there, he rode off or something” was merely his own opinion based on stated facts concerning a matter outside the ordinary realm of human experience as to matters connected with his specialty.
In Watson v. Hardaway-Covington Cotton Co., 223 Ala. 443 , 137 So. 33, 34 , this court said:
“The fact that a question propounded to an expert witness will elicit an opinion from him in practical affirmation or disaffirmation of a material issue in a case will not suffice to render the question improper. The general rule that a witness should narrate the evidence, give the facts, details, and circumstances, and let the jury from the opinion draw the conclusions from the testimony, is subject to an exception where the subject involves the opinion of an expert. He may base his answer on actual knowledge of the fact or on a proper predicate informing him of the fact or condition. It is unnecessary to reproduce the recent decisions on this question, or restate the well-understood rule. Penton v. Penton, 223 Ala. 282 , 135 So. 481 ; Jones v. Keith, 223 Ala. 36 , 134 So. 630 ; Yates v. Barnett, 215 Ala. 554 , 112 So. 122 ; Burton & Sons v. May, 212 Ala. 435 , 103 So. 46 ; Oden-Elliott Lumber Co. v. Daniel-Gaddis Lumber Co., 210 Ala. 582 , 98 So. 730 ; Sloss-Sheffield S. & I. Co. v. Reid, 184 Ala. 647 , 64 So. 334 ; Harbison-Walker Refractories Co. v. Scott, 185 Ala. 641 , 64 So. 547 ; Williamson Iron Co. v. McQueen, as Adm’r, 144 Ala. 265 , 40 So. 306 ; Choate v. Southern Ry. Co., 119 Ala. 611 , 24 So. 373 ; Hood v. Disston & Sons, 90 Ala. 377 , 7 So. 732 .”
And in Kirkland v. State, 21 Ala.App. 348 , 108 So. 262 , it was held that where the inquiry relates to a conclusion to be drawn from knowledge of facts depending upon professional or scientific skill or knowledge, experts may testify to conclusions as the best evidence.
For all or any of these reasons, I find no reversible error in the admission of the dog warden’s testimony, and I, therefore, dissent.
GOODWYN, J., concurs.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9694005. Public record. Not legal advice.