*1 IN THE SUPREME COURT. State v. McLeod. STATE v. WILBUR McLEOD. (Filed January, 1929.) — — — — Weight Sufficiency 1. Homicide Evidence Nonsuit Circum- stantial Evidence. tending person Evidence show that the deceased was ravished suffering gonorrhea, choking, from and that she died from assault with further evidence that the defendant had the disease and that his shoes fitted the tracks made at .time of the crime around the house of place crime, sufficient, the deceased and at the taken with other guilt, evidence of be submitted to the to sustain their verdict degree. S., thereon of murder in the first 2. Criminal Law —Evidence—Circumstantial Evidence. recognized instrumentality accepted Circumstantial evidence is a upon ascertainment of truth the trial of a criminal offense. 3. Criminal Law —Trial—Nonsuit—Evidence. Upon S., 4643, required motion to dismiss under C. it is that the court merely any ascertain whether there is sufficient evidence to sustain the the allegations of the indictment and not whether it be true nor whether jury should believe it. 4. Criminal Law —Evidence—Bloodhounds. may only The action of bloodhounds be received evidence when it
properly they pure they possess powers blood, shown that are of that scents, of acute scent and discrimination between have been pursue track; accustomed and trained to have been by experience pursuit, particular found to be reliable and that in the guilty party way case followed trail in such afford as to permit assurance, identification, substantial a reasonable inference of lacking and where this last element is the admission of evidence of their objection warranting actions over defendant’s is reversible a new error trial. Appeal 5. Criminal and Error —Review—Harmless Error. Law — Upon appeal immateriality clearly appear upon error Supreme face of the record for the Court to find it harmless. Brogden-, J., dissenting.
Appeal defendant from Term, 1928, of May Nunn, Lee. Criminal prosecution tried an charged indictment which it is that the Wilbur prisoner, unlawfully, did on 28 McLeod, March, 1928, wilfully feloniously of his malice kill and murder one aforethought Rebecca Matthews.
The evidence on behalf early of the State tends to show that in the of 28 morning March, a.m., about Mrs. Rebecca Matthews was found dead in a field from her house. She yards approximately thirty FALL TEEM, N.C.] v. McLeod. *2 been
bad ravished some one from such as the by suffering gonorrhea, defendant had. Her death was caused the shock assault, choking. and She was 77 and fit years age, quite feeble. The shoes the prisoner’s tracks seen near the house and from of the de- leading body where was ceased discovered.
On this of the case E. L. phase Cobert, Sanford, night policeman testified in “I follows: measured part seven tracks on the ground it left where the house. I measured three of the tracks across the only field—ten I altogether. with a actually measured rule. Some tracks indicated the man was running, and some indicated that he was Tracks walking. where the toe made a deeper imprint and the distance between the tracks caused me to I say he was measured both running. the running and the walking tracks, and they measured identically same. Two and quarter inches from the heel to the half sole on one shoe and two inches from the heel to half sole on the other shoe, the measurement on the ground was identically same as the measure- ment of the shoes.” (prisoner’s)
Soon after it was known that the deceased had been murdered, Eng- lish bloodhounds (“Cockman” dogs), trained and accustomed to pursu- ing track, and experience found reliable in such pursuit, were put upon the track of the who had person committed the apparently homicide.
W. C. owner of the York, The dogs, testified, substance, follows: followed the trail dogs from the of the deceased body fence, down aby across a field into a patch woods, then out of the woods over a fence into a little woods which road, led to the to- going hard-surfaced road wards The Broadway. which dogs passed by road runs near a from filling home, station across the railroad the direction defendant’s went down the railroad or two three then left miles, circled railroad, back into the highway, came to near the filling station where road, previously crossed, off branches in the direction of defendant’s home. No tracks could be seen but here, dogs pulled right, crossed the railroad, came over a kind of branch or hollow, marsh, within stopped twenty or feet of William thirty house, McLeod’s where the defendant, his father and and several small children were mother, ' living. The dogs went no nearer; he they saw the defendant when came out of the house; did not or indicate the defendant bay any way.
Q. “If you were to carry your dogs to within or feet up twenty thirty of anybody’s house, and they were to stop lay down, what indication would that to he you had tracked A. any certain person?” “None whatever.” COURT. IN THE SUPREME McLeod.
Q. in the house of William person if there were more than one “Then feet, there dogs stopped twenty thirty McLeod on the these night any particular had tracked your dogs was no indication from A. sir.” person?” “No, York the witness testimony
The moved to strike out the exception. action of the bloodhounds. Overruled and relative to the from his house and requested The defendant was carried down the road was different tracks. The statement his shoes two or three place ¡ whereupon made one that shoes did not fit the tracks by some home. He later arrested go defendant was allowed to back was with the murder of the deceased. charged with a Two other arrested as one affected persons suspects, were *3 the tracks venereal the other but the shoes of neither fitted disease, not, hence released. question; they were Motion for as in case of nonsuit. Overruled judgment the and exception.
Verdict: Guilty degree. of murder the first Sentence: Death by electrocution.
The prisoner errors. appeals, assigning Nash Attorney-Generai Attorney-General Brummitt and Assistant for the State. & Young Young defendant. for contends J., after the case: The stating prisoner stressfully Stacy, of the nonsuit, his motion for of made first at the close judgment should have
State’s evidence and renewed at the close of all the evidence, jury been for a allowed, calling but we are of that the case is one opinion the verdict. The motion to dismiss S., 4643, requires under C. alle- court ascertain whether is to sustain the merely any there evidence should gations of the and not whether it true or the indictment, jury be Lawrence, believe it. S. v. 562. post,
True, the evidence is but circumstantial, circumstantial evidence á truth. recognized and in the ascertainment of accepted instrumentality S. v. 153 N. 69 269. Plyler, C., 630, E., S. Merrimon, White, to the in S. v. 89 N.
Speaking subject C., delivering the of the said: opinion Court, evidence,
“It is well settled law that the court decide what is to an whether there is submitted to the any jury, pertinent evidence to be to if issue submitted to them. It is as well settled that there is evidence how- This, be its and effect. submitted, weight must determine jury slight must submit a ever, scintilla^-vevj does not that the court imply such in the of evidence; as, judgment on the it must be contrary, 545 N. FALL TERM, 0.] McLeod. tbe court, would warrant tbe a verdict reasonably jury finding might issue or as submitted, affirmatively negatively, accordingly they or view it one or none light another, give weight, it more less as, at all. In a ought case like the the evidence to be such present one, if the as together whole were taken substantially true, jury might reasonably find defendant guilty. “A single isolated fact or circumstance not might evidence, be no even scintilla; a more, three or taken not make evidence together, might two> circumstances,
in the eye but a law, slight multitude facts and taken together as true, might (make) become that would war evidence rant a a finding verdict in cases of most serious guilty moment. The court must be the a judge to when such combination facts and circumstances reveal the and it must dignity judge evidence, pertinency relevancy of the facts and circumstances to going make up such cannot, evidence. The court decide that however, are true or false; this for but it must all jury, that, together, decide evidence, make some be submitted must be jury; in a such, case like present, same, if the would, jury believed warrant them in reasonably finding guilty,” verdict of as au citing Vinson, for thority 23 position Cobb v. N. v. Fogalman, C., 440; S. Wasson, 335; N. C., v. 71 N. Wittkowsky S. v. 451; Massey, C., Munson, Fonts, N. 658; C., Imp. Co. v. v. Wall., 442; Pleasants Wall., this
Applying principle present think incriminat case, we *4 ing taken in its is totality, sufficient to to evidence, jury, be submitted of but, we course, no as to its S. v. 187 express opinion weight. Young, N. 122 C., 698, S. and cases E., 667, cited.
We are to disposed agree with the in his insistence however, prisoner, that of evidence W. C. blood York, relative to action of the should v. hounds, have been excluded from the consideration. S. jury’s Norman, 153 N. 68 C., 591, S. 917. E.,
It recognized in this of blood fully jurisdiction that the action bemay hounds received in that (1) evidence when it is shown: properly they are of a pure blood, and of stock characterized acuteness scent and power discrimination; possess these (2) qualities, and have track; been accustomed and to (3) trained pursue that they have been found by reliable in such experience (4) pursuit; and that in the particular guilty case were on the trail of the put party, pursued which was in followed under such circumstances and such way as to afford assurance, substantial a infer permit reasonable McIver, v. ence, 902; identification. S. 176 N. 96 C., 718, E., S. S. v. C., 58; N. 89 v. 151 Wiggins, E., Spivey, 676, 171 S. S. N. C.,
35—196 IN THE
546 SUPREME COURT. Company.
Welch Insurance Hunter, Freeman, 60 v. C., 615, 986; 146 N. S. S. 995; E., 65 S. S. v. E., Moore, 39 626. 129 N. S. 547; C., 494, E., 56 S. v. C., 607, E., N. S. in the fact in instant case lies Tbe of the evidence incompetency to no was such as afford reasonable action of bloodhounds as the guilty party. inference identity is so weak and un palpably can we that this evidence safely say Nor no how far harmless. There is telling certain as to render its admission immar error, case was it. “When there is its prisoner's affected in to war on the face of the record order teriality clearly appear Pearson, J., it in McLenan rant in as treating surplusage.” this Court Chisholm, 64 324. C., v. N. so
For new trial must be and it is error, indicated, awarded; a ordered.
New trial. relies cir In cases in which the State dissenting: BeogdeN, or pro cumstantial established evidence alone for conviction facts at trial must and so related to each other duced be of such nature rational every to the and exclude point defendant’s unerringly guilt Wilcox, Goodson, 107 N. S. v. hypothesis C., 798; of innocence. S. v. Melton, C., incriminating 132 N. N. 481. The evi 1139; C., S. v. uncertain and inconclusive as vague, dence the case bar vital fact of "under the guilt. Therefore, insufficient, law, are should warrant the trial guilty, and, my judgment judge verdict have nonsuited the case. S. v. N. Montague, C., SUN I. WELCH & AMMONSv. UNDERWRITERS M. and WIGGINS COMPANY. INSURANCE (Filed January, 1929.) Appeal Error. and Error — Review—Harmless plaintiffs noth- recover is that one of Where the verdict of the assignment action, ing refusal of the of error his the defendant’s respect grant on to him need not he considered trial court to a nonsuit appeal. *5 Warranty, Promissory Policy for Breach of Insurance: —Forfeiture Property Covenant, Relating Subsequent or Condition —Matters Insured. stipulations and material covenants insured certain Where the violates policy provision policy insurance, ais in the and there contained void, is not entitled shall it null and the insured such violation render that to recover thereon.