State v. Moore.

Cook, J.,

аfter stating the case. While the bill of indictment is inartificially and carelessly drawn, yet no such defect appears upon its face as would authorize the Court in quashing it, or arresting judgment after verdict.

In the first count, several articles are alleged to have been stolen, and the valuation placed upon them all is fixed at fifty dollars. Among the articles appears one not the subjeсt of larceny, “meat,” but all the others are, and are of substantial value; to all or any one of which, if shown to have been stolen, the valuation assigned would attach, and proof of larсeny of any one is sufficient (State v. Martin, 82 N. C., 672). In the second count, the same articles are alleged to have been received, and the same valuation assigned, but the quantity and number of pounds are not stated. Defendants’ contention upon that point can not be sustained, ‍‌​‌‌​‌‌​‌​‌‌‌‌​‌‌​‌​​‌​‌‌‌‌‌​‌​​​‌​‌​‌​‌​‌​‌​‌‌​‍because the quantity does not enter into the element of the crime, nor could it in any way prejudice the defendants’ dеfense. So, it is held that charging the larceny of a “parcel of oats” is sufficiently certain (State v. Brown, 12 N. C., 138).

We think the objection taken to the introduction of the conduct of the dog should have been sustainеd by his Honor, and that he erred in admitting it as evidence. We do not base our opinion upon the ground that the dog, being an animal of instinct and not possessed of reason, and ergo his conduct would not be a circumstance to be considered in connecting a person with an act, or in corroborating a statement made by a witness, but upon tbe ground that we fail to see that it was a circumstanсe which would tend to connect the defendants with the larceny, or that it in any way corroborated the testimony of the witness Rountree. It is a matter of common knowledge that there are many breeds of dogs endowed with special traits and gifts peculiar to* their respective kind- — the pointer and setter take instinctively to hunting birds; the hound to- foxes, deer and rabbits, but we know of no breed which instinctivеly hunts mankind. Tet we know that dogs are capable of running the tracks of human beings, as is frequently evidenced by the lost dog trailing his master’s track long distances and through crowded streets, and finally overtaking him, which dеmonstrates the further fact that some distinctive peculiarity exists between- different persons which can be recognized and known by a dog. And it is a well-known fact that the bloodhound can be trained tо run the tracks of strangers; and in this the “training” consists only in being taught to pursue the human track; the gifts or powers or instincts being already inherent in the animal, he is induced to exercise them under the persuasive influence and рrotection of Ms trainer or master. Once trained in this pursuit, we must assume that his accuracy depends not upon his training, but upon the degree of capacity bestowed upon him by nature. Experience and common observation show that among dogs of the full blood and full brothers ‍‌​‌‌​‌‌​‌​‌‌‌‌​‌‌​‌​​‌​‌‌‌‌‌​‌​​​‌​‌​‌​‌​‌​‌​‌‌​‍or sisters, one or more may be highly proficient, while others will be inefficient, unreliable and sometimes worthless; somе may be acute to scent, while others will be dull to- scent and incapable of running a “cold” track. Then again we may find the most reliable and favorite hound taking the “fresher” 'track which crosses his trаil, or quitting the “cold” trail of a fox and following the “hot” track of a deer which he may strike. Likewise, the pointer or setter may abandon a “cold” trail of a covey of birds and follow a “warmer” one upon which he may happen to run. Or the squirrel dog may leave the tree at which he hasi taken his stand and barked, and go to another, or quit entirely. So it does no violence to' common еxperience to assume that dogs are liable to be deficient in their instincts. Therefore, we frequently hear huntsmen speak of some dogs as “true” and ‘staunch,” while others will be denounced as unreliable or “liars.” It sometimes happens that the best-trained foxhounds will lead their master into a rabbit chase, or a pointer will hold his master with trembling excitement while he “points” a terrapin.

Applying common knowledge and experience, of which the Court is justified in taking notice, in connection with the evidence, to the case at bar, we are led to consider whether there is any evidеnce tending to show that Brinson’s dog pursued either one of the tracks made upon the premises at the time of the commission of the crime. After scenting at- the window and in and around the store and upon the steps leading to the ground, he went eighteen or twenty feet to the creek and then barked and turned back, which is understood by all followers of hounds to mean that, he found he was going the wrong dirеction, or the track was so “cold” he could not follow it, or that he was scenting for a track and had failed to find one. In either event, it fails to be any evidence that Jesse’s track had beеn identified, or that the dog had discovered any track at all, or, if he had detected a track, it would not follow that it was not made by some person other than Jesse. And if it be that he did discover a trаck, and it was too “cold” to follow, a like condition would exist as to the tracks of others made at or about the same time.

• This incident tends rather to discredit than corroborate Eountreе, ‍‌​‌‌​‌‌​‌​‌‌‌‌​‌‌​‌​​‌​‌‌‌‌‌​‌​​​‌​‌​‌​‌​‌​‌​‌‌​‍for he said Jesse went across the bridge, while the dog went eighteen or twenty feet to the creek. Had the dog been trailing Jesse’s track, and had Jesse crossed the bridge, the dog would also havе gone there and taken the track back, provided it had not been too “cold” "to follow; or, if for any reason he had lost the trail, having once positively identified Jesse’s track, then surely Jesse would have been the person recognized and bayed by the dog, to the exclusion of others; while, on the contrary, he bayed two of the persons who did not go in the direction of the crеek or bridge (or if they did, there is no evidence of it), and who were shown to have been on the premises, whence the trail was made, that morning a few hours before the dog arrived, and it is not improbable that, had he been pressed or urged, he would have identified each and every one of the persons present at the.store that morning.

This is a novel feature of evidence in our jurisprudence, and is attended with' some danger, and is calculated to excite the superstition of some people that the exercise of that instinctive power, *not possessed by human beings, is a supernatural agency in the aid of human justice, to which too great importance may be attached, and against which Courts will have to guard when the occasion arises

There are оnly three cases cited by the Attorney-General (and we are satisfied that had there been others they ‍‌​‌‌​‌‌​‌​‌‌‌‌​‌‌​‌​​‌​‌‌‌‌‌​‌​​​‌​‌​‌​‌​‌​‌​‌‌​‍would not have escaped his diligent eye) in which the conduct of a dog has been used as evidence. One is Hodge v. The State, 98 Ala., 10, in .which it appears that tracks of a peculiar character, and easily identified, were found near the rear of the house in which the murder was committed; that a dog trаined to follow human tracks was put upon them, and trailed by him to defendant’s house; that the tracks found at the house of deceased were followed by several persons to the defendant’s house, being measured at various points along the route, and at each of such points, identified as being made by the same shoes as were the tracks at the place of murder, and that the rоute thus traced by them was precisely that taken by the dog throughout, and when the defendant was soon captured he had on shoes that made tracks- precisely corresponding to those, traced by the dog. In that case the Court held that the conduct of the dog was competent to go to' the jury for their consideration, in connection with all the other evidence, as a cirсumstance tending to- connect the defendant with the crime.

In another ease, Pedego v. Com., found in 44 S. W. Rep., 143, from Kentucky, the Court held, Guffy, J., dissenting, “That in order to make such testimony (the trailing of a track by a dog) competent, even where it is shown that the dog is of pure blood, and of a stock characterized by acuteness of scent and power of discrimination, it must also be established that the dog in question is possessed of these qualities, and hаs been trained or tested in their exercise in the tracking of human beings, and that these facts must appear from the testimony of some person who has personal knowledge thereof. We think it must also appear that the dog so trained and ‍‌​‌‌​‌‌​‌​‌‌‌‌​‌‌​‌​​‌​‌‌‌‌‌​‌​​​‌​‌​‌​‌​‌​‌​‌‌​‍tested,was laid on the trail, whether visible or not, concerning which, testimony has been- admitted at a point where the circumstances tend cleаrly to show that the guilty party has been, o-r upon a track which sneh circumstances indicated to have heen made by him. When so indicated, testimony as to trailing by the bloodhound may he permitted to go to the jury for what it is worth, as one of the circumstances which may tend to connect the defendant with the crime of which he is accused. When not so indicated, the trial Court should exclude the entirе testimony in that regard from the jury.”

The third is Simpson v. State, 20 Southern Rep., 572 (an Alabama case), in which the evidence of trailing by the dog was admitted without objection.

In this case, there is no evidence to connect the сircumstance of the baying of the two- defendants, or either of them, with the making of tracks at the time the larceny was committed; nor is'there any evidence that the dog scented any that were then miade by either of the defendants; nor ia there any way to ascertain that fact.

The evidence admitted failing to become a circumstance to connect the defendants with the crime, and failing to become a circumstance in corroboration of Rountree’s testimony, there was error in admitting it, and there must be a

New Trial.

Case Details

Case Name: State v. Moore.

Court Name: Supreme Court of North Carolina

Date Published: Sep 18, 1901

Citation: 40 S.E. 626

Court Abbreviation: N.C.