
    Livingston v. The State.
    
      Indictment for Burglary.
    
    1. Tracks; opinion of witness. — On a prosecution for burglary, a witness who had examined tracks that were made near the building which was burglarized, can not testify that, in his opinion, such tracks corresponded with the track of the defendant; the witness should state the facts of correspondence and identification, and it is the province of the jury to determine from such facts whether the tracks correspond with and were the tracks of defendant.
    Appeal from the City Court of Montgomery.
    Tried before the. Hon. Thomas M. Arrington.
    The appellant was indicted, tried and convicted for burglary. There is but one question presented on the present appeal, which refers to the ruling of the court upon the introduction of evidence. The facts in reference to this ruling are sufficiently stated in the opinion.
    John G. Winter, for appellant,
    cited Hodge v. State, 97 Ala. 37 ; Riley v. State, 88 Ala. 193 ; Young v. State, 68 Ala. 569.
    W. C. Fitts, Attorney-General, for the State,
    cited Riley v. State, 88 Ala. 193 ; Young v. State, 68 Ala. 569 ; Busby v. State, 77 Ala. 66 ; Hodge v. State, 97 Ala. 37.
   HARALSON, J.

A witness for the State testified that there were some tracks found near the building which had been burglarized ; that pne of the tracks was made by a person wearing a number 6 or 7 shoe ; that defendant wore a 6 or 7 shoe, and “these (trades) corresponded, in his opinion, with the track of defendant.” To the part of this evidence which is italicized, the defendant objected, but the court admitted it, and defendant excepted. There was other evidence, tending to show that the defendant was guilty, and some tending to show he was not. The court admitted, that, of itself, this evidence was not sufficient, and stated : “That unless some other evidence is introduced connecting the defendant with the offense charged, I will exclude the evidence as being insufficient by itself.“ If illegal, no other evidence tending to show defendant’s guilt, could make it legal, and that it was illegal, as being the mere expression of an opinion of the witness, as to the correspondence or iden- * tification of the tracks, with those of defendant, there can be no doubt. He was not competent to give his opinion on the subject at all. Pie should have been required to state the facts of correspondence and identification, and it was for the jury to find from the facts thus deposed to, whether they corresponded with and were the defendant’s tracks.—Hodge v. The State, 97 Ala. 40; Riley v. The State, 88 Ala. 193; Busby v. The State, 77 Ala. 66; Young v. The State, 68 Ala. 569.

Reversed and remanded.  