State v. Church, 507.

• Decision Date: 04 May 1932
• Docket Number: No. 507.,507.
• Citation: 202 N. C. 692,163 S.E. 874
• Court: North Carolina Supreme Court
• Parties: STATE. v. CHURCH.

163 S.E. 874

202 N. C. 692

STATE.

v.CHURCH.

No. 507.

Supreme Court of North Carolina.

May 4, 1932.

Appeal from Superior Court, Burke County; Clayton Moore, Special Judge.

Victor Church was convicted of setting fire to or burning a storehouse, and he appeals.

Reversed.

Criminal prosecution tried upon an indictment charging the defendant with wantonly and willfully setting fire to or burning a storehouse in Burke county, the property of one J. S. Hemphill, contrary to the provisions of C. S. § 4242, as amended by Pub. Laws 1927. c. 11, § 1.

The only evidence relative to the origin of the fire is the following testimony of J. S. Hemphill: "My home is about 50 to 75 yards from the store. I first learned that the store building was on fire when the light shined from the building into my room. The front part was on fire. I got up and got a bucket of water and threw it on the blaze thinking I could put it out. The fire was in the front part, the left front entering the door; it was outside. When I discovered the fire it was very small and I thought I could put it out with a bucket of water but when I threw water on the fire it flashed all over the front of the building and in a moment or two theglass burst and the flames went right inside. I threw water On the fire and it flashed on the building, about 3 feet from the porch on side of wall."

The state sought to connect the defendant with the burning by circumstantial evidence consisting of alleged similarity of tracks and purported trailing of bloodhounds.

The following excerpt from the charge forms the basis of one of defendant's exceptive assignments of error: "If you find beyond a reasonable doubt that these dogs tracked the man and I charge you that these dogs as qualified and testified to by witnesses were dogs of experience and training and could track persons and when put on the track of a human being they follow that track and that alone."

From an adverse verdict and judgment of not less than 20 nor more than 30 years in the state's prison at hard labor, the defendant appeals, assigning errors.

S. J. Ervin and S. J. Ervin, Jr., both of Morganton, for appellant.

D. G. Brummitt, Atty. Gen., and A. A. F. Seawell, Asst. Atty. Gen., for the State.

STACY, C. J.

We agree with the learned counsel for the defendant that error was committed in connection with the testimony relative to the action of the bloodhounds (State v. McLeod, 196 N. C. 542, 146 S. E. 409); and further that, upon the whole case, the evidence...