State v. Rowland, 731

• Decision Date: 15 January 1965
• Docket Number: No. 731,731
• Citation: 18 A.L.R.3d 1212,263 N.C. 353,139 S.E.2d 661
• Parties: , 18 A.L.R.3d 1212 STATE, v. Frank ROWLAND.
• Court: North Carolina Supreme Court

Page 661

139 S.E.2d 661

263 N.C. 353, 18 A.L.R.3d 1212

STATE, v. Frank ROWLAND.

No. 731.

Supreme Court of North Carolina.

Jan. 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. bery. '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 common-law 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...