State v. Rowland , 263 N.C. 353 ( 1965 )

139 S.E.2d 661 (1965) 263 N.C. 353

STATE
v.
Frank ROWLAND.

No. 731.

Supreme Court of North Carolina.

January 15, 1965.

Atty. Gen. T. W. Bruton, Deputy Atty. Gen. Harry W. McGalliard, Asst. Atty. Gen. Richard T. Sanders and Staff Attorney L. P. Hornthal, Jr., Raleigh, for the State.

Watts & Gardner, Lumberton, for defendant.

SHARP, Justice.

Defendant's appeal presents two questions: (1) Was defendant's motion for nonsuit properly overruled? (2) Did the court err in admitting evidence of the action of the dog, with which, according to the State's evidence, the deputy sheriff tracked defendant?

Even if the bloodhound evidence were eliminated, the remaining evidence was, taken in the light most favorable to the State, sufficient to establish these facts: Three hundred dollars (two one-hundred dollar bills and others of smaller denomination) was taken from the person of Maggie Hunt while she was unconscious from a blow. An unseen assailant had inflicted the blow within minutes after Mrs. Hunt had heard a noise inside of the house and while she was investigating it. Defendant had been on the premises fifteen minutes previously, begging food. He had been penniless the day before and had been wearing the tennis shoes with holes in them. The afternoon Mrs. Hunt's money was taken, defendant purchased, among other things, shoes and whiskey. That night, when the deputy entered the room where defendant was, defendant attempted to conceal between the cushions and the coverlet of the sofa on which he was seated two one-hundred dollar bills and eighteen or nineteen dollars in smaller bills. The only statement he made was that the money was not his.

The crime of which defendant was charged and convicted was robbery with the use of a dangerous weapon, to wit: a large club or blunt instrument. It is defendant's contention that his motion for nonsuit should have been allowed because, inter alia, there is no direct or positive evidence that Mrs. Hunt was struck with any dangerous weapon, namely a club or blunt instrument. Defendant's motion for nonsuit was general. He did not specifically move to dismiss the charge of armed robbery. "A motion for judgment as of nonsuit addressed to the entire bill is properly overruled if there is evidence sufficient to support a conviction of the crime charged or of an included * * * crime." State v. Virgil, 263 N.C. 73, 75, 138 S.E.2d 777, 778; accord, State v. Johnson, 227 N.C. 587, 42 S.E.2d 685. An indictment under G.S. § 14-87 includes common-law robbery. State v. Wenrich, 251 N.C. 460, 111 S.E.2d 582. Palpably, the State's evidence in this case would support a conviction of commonlaw robbery. State v. Lawrence, 262 N.C. 162, 136 S.E.2d 595. We think the State's evidence equally potent to establish robbery with the use of a club or other blunt instrument. "The dangerous or deadly character of a weapon with which accused was armed in committing a robbery may be established by circumstantial evidence." 77 C.J.S. Robbery § 47c (1952). In People v. Sampson, 99 Cal. App. 306, 278 P. 492 (3d Dist. Ct. of Appeals), a case in which the defendant was convicted of robbery, the victim was struck from behind. In sustaining a conviction the court said:

"Having been rendered immediately unconscious by the blow, and not having seen in advance the instrument with which he was struck, the witness could not know what weapon was used. The character of weapon used by the defendant may be shown, of course, by circumstantial evidence, and proof that the victim was rendered unconscious by the blow and remained in that condition for a considerable time, together with the nature of the injury inflicted, warrants the inference, in the absence of other evidence, that a dangerous weapon was used." Id. at 309, 278 P. at 493.

In People v. Liner, 168 Cal. App. 2d 411, 335 P.2d 964 (4th Dist. Ct. of Appeals), the court held that the jury could infer, from the appearance of the wound in the back of the victim's scalp, that a blunt object, which was a dangerous or deadly weapon, was used. Here, Mrs. Hunt, the victim, was rendered unconscious by a blow which, leaving a wound requiring eight stitches to close, caused her to be hospitalized for two weeks. The only reasonable inference is that a dangerous weapon was used.

When the motion for nonsuit calls into question the sufficiency of circumstantial evidence, the question for the court is whether a reasonable inference of defendant's guilt may be drawn from the circumstances. If so, it is for the jury to decide whether the facts, taken singly or in combination, satisfy them beyond a reasonable doubt that the defendant is actually guilty. State v. Thompson, 256 N.C. 593, 124 S.E.2d 728; State v. Bright, 237 N.C. 475, 75 S.E.2d 407. The chain of circumstantial evidence in this case was clearly sufficient to establish both the corpus delicti and that defendant was the perpetrator of the crime. Thus, it was sufficient to overrule defendant's motion for nonsuit.

Defendant next contends that he is entitled to a new trial because the bloodhound evidence was both incompetent and prejudicial.

In State v. McLeod, 196 N.C. 542, 146 S.E. 409, a case in which bloodhound evidence was held incompetent and prejudicial because the action of the dogs afforded no reasonable inference of identity of the prisoner as the guilty party, Stacy, C. J., said:

"It is fully recognized in this jurisdiction that the action of bloodhounds may be received in evidence when it is properly shown: (1) That they are of pure blood, and of a stock characterized by acuteness of scent and power of discrimination; (2) that they possess these qualities, and have been accustomed and trained to pursue the human track; (3) that they have been found by experience reliable in such pursuit; (4) and that in the particular case they were put on the trail of the guilty party (who) * * * was pursued and followed under such circumstances and in such way as to afford substantial assurance, or permit a reasonable inference, of identification." Id. at 545, 146 S.E. at 411.

Defendant argues that the State did not lay a proper foundation for the bloodhound evidence in that it failed to establish either that Deputy Thompson's dog was of pure blood or that, at the end of the trail, the dog identified defendant with reasonable certainty—requisites (1) and (4) as set out above in McLeod.

With reference to the first requisite, the deputy described his dog as "a bloodhound" and "a thoroughbred." "The terms thoroughbred, full-blood, and purebred are generally used in this country as practically synonymous." 3 Dictionary of American English 1861 (1942 ed.). In State v. Wiggins, 171 N.C. 813, 89 S.E. 58, identification of the defendant by "bloodhounds brought from Tennessee" was admitted. In State v. Yearwood, 178 N.C. 813, 101 S.E. 513, the admission of evidence of identification by a dog described only as "an English bloodhound" was approved. In practice, if the dog has been identified as a bloodhound, it has been the conduct of the hound and other attendant circumstances, rather than the dog's family tree, which have determined the admissibility of his evidence.

We find no North Carolina cases, and defendant has cited us to none, in which bloodhound evidence has been excluded for a deficiency in the proof of the bloodhound's pedigree if he is shown to be naturally capable of following the human scent, i. e., that he is a bloodhound, and if the evidence is corroborative of other evidence tending to show defendant's guilt. See Annot., Evidence of trailing by dogs, 94 A.L.R. 413, 419. In State v. Yearwood, supra, 178 N.C. at 818, 101 S.E. at 516, Walker, J., said: "The dog which trailed this defendant proved his own reliability." So, also, it seems to us, did the deputy's dog. The performance of this "pretty old" dog without any papers puts him in a class with the young horse which was the subject of many a chapel talk to his boys by famed old schoolmaster William Robert ("Old Sawney") Webb at the Webb School in Bellbuckle, Tennessee. His story was that when a young horse of obscure lineage (no registration papers) won the derby in a record-breaking burst of speed, horse fanciers began scouring the country for his sire, dam, and siblings. This young stallion, according to "Old Sawney," had "pedigreed his ancestors," and that was all that the school-master demanded of his boys. By his performance, the old dog in this case pedigreed himself, at least. This record leaves little doubt that the shoe prints which he had followed from Maggie's to Earline's belonged to defendant.

It is true that the evidence is silent as to what the dog did when he and the deputy arrived at Earline Carter's. She said that the officer tied the dog outside and never brought him into the house. The deputy said that the dog went in with him, but counsel for neither the State nor defendant inquired into the dog's actions inside the house. They, as we, probably considered the dog's conduct at the end of the trail immaterial when, there, the deputy found defendant sitting on a cache of money, which included two one-hundred dollar bills. Such a circumstance ordinarily would satisfy the fourth requisite given above in McLeod. See State v. Norman, 153 N.C. 591, 595, 68 S.E. 917, 918. We conclude that the bloodhound evidence is not incompetent for failure to comply with McLeod. If, however, defendant had been found at the end of the trail without the hundred-dollar bills, the evidence would undoubtedly be incompetent. The law of probability makes it as certain as anything in life can be that the bills belonged to Maggie Hunt; under these facts it made no difference whether the dog bayed defendant.

The feat of the dog in following defendant's tracks from Maggie Hunt's to Earline's furnished, in itself, no relevant evidence, under the facts of this case, that defendant was the robber, i. e., no relevant evidence linking defendant with the corpus delicti. It is irrelevant that defendant's tracks led from Maggie's house, for he had been there earlier to beg, a lawful mission. That defendant was present at Earline's house at the time the dog arrived there was clearly a coincidence. Since, coincidentally, defendant happened to be at Maggie's with the money, we think the admission of the evidence, if error, was not prejudicial error. It explained the deputy's timely arrival and is equivalent to the testimony we frequently hear from officers that "in consequence of a telephone call from X" they went to a designated spot, where they found a certain item or person. Such evidence does not itself tend to link a defendant with the corpus delicti, but it does relate to other evidence so tending.

As previously pointed out, the State's evidence was sufficient, without the bloodhound evidence, to take the case against defendant to the jury. Upon a third trial, "with the dog left out," we apprehend that the verdict would be the same, because of defendant's possession of the bills. See State v. McLeod, 198 N.C. 649, 152 S.E. 895 (second trial) (dissent of Brogden, J.). The bloodhound evidence could not have brought about the result. State v. Norris, 242 N.C. 47, 86 S.E.2d 916. The burden is on defendant to show not only that there was error but also that the error affected the result adversely to him.

In the trial we find

No error.