State v. Lanier

273 S.E.2d 746 (1981)

STATE of North Carolina v. Bobby George LANIER.

No. 8022SC687.

Court of Appeals of North Carolina.

January 20, 1981.

*748 Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. George W. Lennon, Raleigh, for the State.

Leonard & Snyder by James E. Snyder, Jr., Lexington, for defendant-appellant.

WHICHARD, Judge.

Defendant contends the trial court erred in admitting the testimony of the State's witness as to the actions of the bloodhound and in refusing to grant his motion to dismiss for insufficiency of the evidence. We agree with both contentions.

In State v. McLeod, 196 N.C. 542, 545, 146 S.E. 409, 411 (1929), our Supreme Court, per Chief Justice Stacy, set forth the rule on admission of evidence regarding actions of bloodhounds as follows:

*749 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, which was pursued and followed under such circumstances and in such way as to afford substantial assurance, or permit a reasonable inference, of identification.

This rule has been quoted with approval in recent opinions of the Supreme Court. See State v. Irick, 291 N.C. 480, 495-497, 231 S.E.2d 833, 843-844 (1977); State v. Rowland, 263 N.C. 353, 358-361, 139 S.E.2d 661, 665-666 (1965).

We do not consider whether the evidence here met the first three McLeod requirements, for we find that it clearly failed to meet the fourth requirement. For bloodhound evidence "[t]o 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. Marze, 22 N.C.App. 628, 630, 207 S.E.2d 359, 361 (1974). Nothing in this record tends to establish that the defendant was ever at the Hartman residence. The witness Bates testified that he saw two men at the residence, but he was unable to identify them. There was no evidence whatsoever that the defendant was at the place from which the dog was released to track the thieves. There was evidence that a .22 rifle and a .12 gauge shotgun were missing from the Hartman residence, and that they were found "on the far side of the fence from the house;" but there was no evidence whatsoever placing them or other stolen items in defendant's possession or placing defendant closer than "about a mile and a half or two miles" from where they were located. There was evidence of footprints being found in the vicinity of the Hartman residence, but no evidence whatsoever indicating they were defendant's footprints. There was no evidence whatsoever that defendant was fleeing to avoid capture.

The evidence tending to "afford substantial assurance ... of identification" in McLeod was considerably greater than that here; yet, the Supreme Court in McLeod held that it should have been excluded. A fortiori, the evidence here should have been excluded. Likewise, there was considerably more evidence in Marze than here tending to identify the defendant and to point to his guilt; yet, this Court considered that evidence insufficient to go to the jury. A fortiori, the evidence here was insufficient to go to the jury.

The sum of the evidence against this defendant is that one and one-half to two hours after a breaking occurred and one and one-half to two miles away, he was found on a "little sandbar" by a creek watching the rippling of the brook on a Sunday afternoon. If this constitutes criminal conduct, the author of this opinion pleads guilty to repeated offenses; and he only regrets the infrequency of their occurrence. Further, this may be the type of case Shakespeare had in mind when he wrote:

The jury, passing on the prisoner's life, May in the sworn twelve have a thief or two Guiltier than him they try.[1]

The evidence relating to the actions of the bloodhound should have been excluded for its failure "to afford substantial assurance or permit a reasonable inference, of identification" as required by McLeod. 196 N.C. at 545, 146 S.E. at 411. Without this testimony, the record is devoid of any evidence which even raises "a suspicion or conjecture" as to defendant's guilt, and certainly does not contain the "substantial evidence *750 of all material elements of the offense [necessary] to withstand the motion to dismiss." State v. Stephens, 244 N.C. 380, 383, 93 S.E.2d 431, 433 (1956). See also State v. Smith, 40 N.C.App. 72, 252 S.E.2d 535 (1979).

The judgment is therefore vacated and the cause remanded to the Superior Court for entry of judgment of dismissal.

Vacated and remanded.

HEDRICK and CLARK, JJ., concur.

NOTES

[1] W. Shakespeare, Measure for Measure, Act II, Scene 1, line 19.