State v. Yearwood , 178 N.C. 813 ( 1919 )

Walkbe, J.,

after stating tbe relevant facts as above: Tbe evidence in this case was certainly sufficient to be considered by tbe jury upon tbe issue as to defendant’s guilt, and tbe motion for a nonsuit was properly disallowed. Tbe question as to tbe competency of testimony about tbe trailing of a person suspected of guilt by bloodhounds has been- thoroughly well settled by this Court, and we have held that, under certain conditions, such evidence is admissible. Tbe dog which trailed this defendant proved bis own reliability. The' subject is fully treated in S. v. McIver, 176 N. C., 718, and cases therein cited. A ease which comes very near to a perfect likeness of this one is Richardson v. State, 145 Ala., 46, where it was held that, under proper conditions, it is permissible for tbe purpose of connecting a defendant with a crime, to admit evidence, along with tbe other circumstances, that dogs trained to track human beings were put on tbe trail at tbe scene of tbe crime, where circumstances or evidence tend to show tbe defendant bad been, and that after taking tbe trail they went thence to a point where defendant is shown to have been after the commission of the act. "Where such evidence is proposed to be introduced, it would, of course, be proper to allow a witness, familiar with the dogs and accustomed to handling them, to testify that they are skilled in the trailing or tracking of men, and within what time, after the making of tracks, the dogs would take up and follow the trail. The court committed no error in allowing the witness Townsend to testify along these lines, citing Hodge v. State, 98 Ala., 10; Simpson v. State, 111 Ala., 6; Little v. State (Ala.), a. 432. Hodge v. State, supra, is also much like the case at bar. Justice McOlellan there said: “We are of the opinion that the fact that the dog, trained to track men, as shown in the testimony, was put on the tracks at the scene of the homicide, and, Taking the trail/ so to speak, went thence to defendant’s house, where he, the defendant, is shown to have been that night after the killing, was competent to go to the jury for consideration by them, in connection with all the other evidence, as a circumstance tending to connect the defendant with the crime; and, of consequence, that the court committed no error in refusing to exclude it.” In Parker v. State, 108 Am. St. Eep., 1021, it was held that if a human track, assumed to be that of the person accused of crime, and which the circumstances in evidence tend to show was his track, was pointed out to the bloodhound trained in trailing human tracks, and such dog trailed the track from where it was pointed' out to him to the residence of the accused, s'ome mile and one-half away, and the course of his pursuit of such track was followed by witnesses, who testified that the dogs followed this same track, which they described, evidence of these facts is admissible as showing a circumstance connecting the accused with the crime. On the trailing of one accused of murder, whose tracks have been followed by a bloodhound, a witness is competent to state his knowledge of, and experience with, such dog as being an animal trained and used for the purpose of running down human beings. A case of prominence in this branch of the law, and frequently cited, is Pedigo v. Com., 103 Ky., 41 (44 S. W., 143), where it was held that testimony as to trailing by a bloodhound is admissible, where it is established by the testimony of some person who has personal knowledge of the fact that the dog in question has acuteness of scent and power of discrimination, and has been trained or tested in the tracking of human beings, and it appears that the dog so trained and tested was laid on the trail, whether visible or not, at a point where the circumstances tend clearly to show that the guilty party has been, or upon a track which such circumstances indicate to have been made by him. The same Court held, in Denham v. Com., 119 Ky., 508, that in a prosecution for crime, evidence of the trailing of defendant by bloodhounds, which were shown to have been of good breeding, and to have been carefully trained in tracking men, and which had tracked and aided in. tbe capture of many criminals, was admissible, altbougb tbe pedigree of tbe dogs were not asked about or stated witb particularity.

Tbe Court said,, in Davis v. State, 46 Fla., pp. 137-140: “Tbe adjudged cases on tbis point are few, but uniform in admitting sucb evidence under proper conditions. But in order tbat sucb testimony be admissible, there must be preliminary proof of sucb cbaracter as to sbow tbat reliance may reasonably be placed upon tbe accuracy of tbe trailing attempted to be proved. There should first be testimony from some person who has personal knowledge of tbe fact tbat tbe dog used has an acuteness of scent and power of discrimination, which have been tested in tbe tracking of human beings. Tbe intelligence, training, and purity of breed are all proper matters for consideration and determining tbe admissibility of sucb evidence, as is also tbe behavior of tbe dog in following tbe track pointed out,” citing authorities.

We have referred to tbe above authorities specially, because their facts are so analogous to those of tbe case in band. But tbe principle is so well settled in tbis State tbat it is much too late now to question it. Tbe evidence here fully complies witb tbe rule of admissibility, as stated by us. There is! evidence tbat tbe dog which was set on tbe trail was an English bloodhound of established reputation, and bad been trained and bandied by its owner in a large number of cases where human beings bad been trailed. Tbe conduct of tbe dog was somewhat remarkable,, and indicated tbat be was competent and well fitted for tbe pursuit in which be was employed. Tbe defendant, Swep Yearwood, bad evidently been at one of tbe yards on tbe evening of tbe fire, and was seen by others on bis way back to bis home. He was not traveling tbe ordinary and usual route, near tbe gap, but deviated therefrom, and when be came to-logs be did not step over them, but went around tbe ends, and tbe dog-pursued tbe identical course when trailing him, showing tbat bis scent, was keen and discriminating. He then followed bis tracks to bis home,, and to tbat part of tbe bed in which be bad slept tbe night before, and showed by bis action and conduct tbat be bad found tbis as bis last resting place. Tbe defendant was not pursued further because tbe dog’s, owner, and trainer, deemed it unnecessary. We do not say tbat tbis testimony was at all conclusive, but it disclosed facts and circumstances, sufficient for tbe consideration of tbe jury in connection witb tbe other-evidence in tbe case, and as corroborative thereof. S. v. Moore, 129 N. C., 494, and S. v. Norman, 153 N. C., 592, relied on by defendant1, are materially different from tbe decisions cited by us, and from this., case, and do not apply.

Tbe motion to nonsuit was properly overruled as to both defendants, because there was evidence for tbe jury upon tbe question of guilt. The-circumstances connecting Tabor witb tbe commission of tbe offense were sufficiently strong for submission to tbe jury.

We bave reviewed carefully tbe questions of evidence, and find no error in tbe judge’s rulings in regard to it. What was "said by Tearwood’s mother and sister was but a part of a conversation between them, C. C. Mills, and Swep Yearwood. Tbe latter must bave understood tbe significance of it, and that it was calculated and intended to produce tbe impression upon Mills that Swep was innocent because be bad been confined to bis bed for two days and nights, and therefore could not bave been at tbe wood, or lumber, yards. Mills asked tbe defendant if be bad been in bed, and be replied that be bad. He was seen late that afternoon coming from tbe lumber yards and going to bis father’s bouse. This apparent deception on bis part was relevant to tbe issue, because it was a circumstance tending to show guilt. He was pretending to be innocent by impliedly asserting an alibi, when there was evidence that there was no alibi, as be bad actually been seen away from bis borne and returning to it that afternoon. We considered a similar question in S. v. James Lewis, 177 N. C., 555, and it was there held that where a prisoner and bis witnesses bave testified, for tbe purpose of proving an alibi, that be was sick in bed for a period of time extending over two weeks, including tbe day on which tbe rape was committed, for which be was being tried, it is competent, in order to contradict these statements, for tbe State to show that during that time be was several times seen apparently well and going about at other places. Tbe defendant in this case can hardly be beard to deny that bis conduct on this occasion was a virtual representation that be bad been sick and in bed during tbe period covering tbe afternoon on which tbe burning of tbe lumber occurred.

Unanswered questions are not legitimate subjects of exceptions, unless it appears what was expected to be proved, or, in other words, what tbe answer would bave been if it bad been admitted by tbe court. It would be useless to send a case back for a new trial for such alleged errors as tbe witness, when again questioned, may say that be knows nothing about tbe matter, and if so, our labor will bave been in vain, and worse it would be, for we would bave uselessly prolonged litigation. This kind of • exception has frequently been disallowed. It is said in Gibson v. Terry, 176 N. C., 533 : “There is another reason why tbe exception cannot be sustained. While tbe question indicates what tbe defendant was endeavoring to prove, it does not appear in tbe case on appeal what tbe witness would bave testified to. He might bave answered ‘Yes’ or No.’ In Knight v. Killbrew, 86 N. C., 402, tbe Court says: ‘It is a settled rule that error cannot be assigned in tbe ruling out of evidence unless it is distinctly shown what tbe evidence was in order that its relevancy may appear, and that a prejudice has arisen from its rejection.’ ” Justice Allen cites Knight v. Killbrew, supra, and approves tbe quotation therefrom in Stout v. Turnpike Co., 157 N. C., 367.

There are several other exceptions to evidence, but it is so apparent they were not well taken we will not discuss them, as it would protract the opinion beyond its proper limits without any corresponding benefit. We have carefully scanned the record, and no error is found.

No error.