State v. Marze

207 S.E.2d 359 (1974)

22 N.C. App. 628

STATE of North Carolina v. Tony Eugene MARZE and Danny Reid Ziegler.

No. 7420SC458.

Court of Appeals of North Carolina.

August 7, 1974.

*361 Atty. Gen. Robert Morgan by Associate Atty. Gen. Charles R. Hassell, Jr., Raleigh, for the State.

Wardlow, Knox & Knox by John S. Freeman and H. Edward Knox, Charlotte, for the defendant.

CARSON, Judge.

Able counsel for the defendant vigorously contends that a judgment as of nonsuit should have been entered at the conclusion of the State's evidence and again at the conclusion of all the evidence. On a motion for nonsuit, the evidence must be considered in the light most favorable to the State, giving the State the benefit of any reasonable inferences which arise therefrom. State v. McNeil, 280 N.C. 159, 185 S.E.2d 156 (1971); State v. Bronson, 10 N.C.App. 638, 179 S.E.2d 823 (1971). Applying that test to the facts of the instant situation, it is clear that the evidence is sufficient to sustain a finding that someone broke into the home of the Holcombs and their motor vehicle on the date in question, and stole the items as set forth in the bills of indictment. It is further reasonable to assume that the thieves placed the items in the woods some fifty feet from where the defendant Marze's vehicle was located on the road. We do not feel, however, that there was enough evidence to justify submitting the question of the defendants' guilt to the jury. There is no competent evidence to sustain a finding that the defendants were ever at the Holcomb residence. The fact that a print of a tennis shoe was on the door of the Holcomb home and the defendant Ziegler was wearing tennis shoes is of no probative value. It has no tendency to identify the defendant as the perpetrator of the crime unless circumstances show that the shoe prints were found at or near the place of the crime, that the shoe prints were made at the time of the crime, and that the shoe prints correspond to shoes worn by the accused. State v. Pinyatello, 272 N.C. 312, 158 S.E.2d 596 (1968); State v. Palmer, 230 N.C. 205, 52 S.E.2d 908 (1949). Neither the second nor the third condition as set forth was met in the instant case. In addition, there was no peculiar identifying characteristic shown between the shoe print on the door and the shoes worn by the defendant Ziegler. There was not even an exact measurement to correspond. This matter, therefore, should not have been considered by the jury.

Neither should the testimony concerning the bloodhounds be given any probative value. To be considered by the jury, it is necessary for the State to show that the dog was put on the trail of the guilty party under such circumstances as to afford substantial assurance that the person trailed was, in fact, the person suspected. State v. Rowland, 263 N.C. 353, 139 S.E.2d 661 (1965); State v. Norman, 153 N.C. 591, 68 S.E. 917 (1910). Here, the dogs were released at least three to four hundred feet from the Holcomb house. There was no evidence whatsoever that the persons who broke into and robbed the Holcomb home were at the position three to four hundred feet away where the dogs were released.

*362 While the fact of flight may be considered by the jury along with other evidence, standing alone it is insufficient to raise the presumption that the defendant committed the crime in question. State v. Gaines, 260 N.C. 228, 132 S.E.2d 485 (1963); State v. Swain, 1 N.C.App. 112, 160 S.E.2d 94 (1968). This is especially true when the flight occurred at a distance of some two miles from the scene of the crime.

Finally, the location of some of the stolen property in the woods fifty feet from the defendant's parked vehicle is insufficient to place their possession with the defendant. The doctrine of recent possession did not apply. State v. Glenn, 251 N.C. 156, 110 S.E.2d 791 (1959).

Considering all of the evidence in the light most favorable to the State, we do not feel that there was sufficient evidence of guilt for this matter to be submitted to the jury.

Reversed.

PARKER and VAUGHN, JJ., concur.