Appeal by defendant from Friday, Judge. Judgment entered 22 August 1980 in Superior Court, Mecklenburg County. Heard in the Court of Appeals 23 October 1981.
Webb, Judge. Judges Martin (Robert M.) and Wells concur.
The defendant's first assignment of error deals with the admission of the testimony as to Homer's actions. Several cases in this jurisdiction have dealt with the admission into evidence of the actions of bloodhounds. See State v. Irick, 291 N.C. 480, 231 S.E.2d 833 (1977); State v. Rowland, 263 N.C. 353, 139 S.E.2d 661 (1965); State v. McLeod, 196 N.C. 542, 146 S.E. 409 (1929) and State v. Hawley, N.C. App. , S.E.2d (1981). Each of these cases has stated the rule as follows:
"It is fully recognized in this jurisdiction that the actions 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."
The defendant argues the evidence was not sufficient to support the admission of evidence as to Homer's actions. He says the evidence was insufficient as to the second requirement that Homer had been properly trained to pursue the human track, and the fourth requirement that Homer was put on the trail of the guilty party under such circumstances as to afford substantial assurance or permit a reasonable inference of identification.
Mr. Starnes testified that Homer had been trained by Mr. Starnes' supervisor; that Mr. Starnes had worked with him once in a training capacity and on a "dozen or so" other trackings and had found him to have a very sensitive nose. We believe this is sufficient evidence for a finding that Homer had been properly trained. See State v. Irick, supra at 495. The defendant points out that Mr. Starnes testified that during practice sessions Homer was 65% reliable and in other sessions he was 50% reliable while the other dogs at the shelter were 65% to 70% reliable. This is evidence that Homer had not been properly trained. We believe the evidence that Homer was properly trained supports Judge Friday's finding to that effect. Since there is evidence to support this finding of fact, we cannot disturb it.
As to the defendant's argument that Homer was not put on the trail under such circumstances as to permit a reasonable inference of identification, the defendant relies on State v. Lanier, 50 N.C. App. 383, 273 S.E.2d 746 (1981) and State v. Marze, 22 N.C. App. 628, 207 S.E.2d 359 (1974). In Lanier this Court held that the testimony as to the actions of the bloodhound provided no evidence that the defendant was ever at the crime scene. We believe the instant case is distinguishable from Lanier. The testimony that Homer followed a scent from the automobile to
the service station before he was taken off the track and then found the scent in the woods by Sugar Creek Road and followed it to the defendant would place the defendant at the service station. We also believe this evidence supports the finding of fact by Judge Friday that Homer was put on the scent and pursued it in such manner that it would support a reasonable inference of identification. In Marze the bloodhound was put on a scent located three to four hundred feet from a house which had been the object of a breaking and entering. This Court held there was no evidence that the thief had ever been at the position at which the bloodhound was released. In the instant case there was evidence that the robber had been at the automobile where Homer first started tracking and at the service station. The defendant's first assignment of error is overruled.
In his second assignment of error the defendant contends the court committed error in the charge. While recounting the testimony of the service station attendant, the court stated "He testified that he was looking down from his chair on the defendant." Neither the service station attendant nor any other witness had identified the defendant as the perpetrator of the robbery. The defendant relies on State v. Oakley, 210 N.C. 206, 186 S.E. 244 (1936) as precedent for reversible error. In Oakley, a capital case, the judge interrupted a witness and asked him "You tracked the defendant to whose house?" Although the judge instructed the jury that he had not intended to use the word "defendant" but should have said "He followed a set of tracks to whose house?" our Supreme Court held it was reversible error. All the evidence was circumstantial as it was in the instant case and the Supreme Court held this question by the judge to be an expression of opinion which required a new trial. We do not believe Oakley requires a new trial in this case. Throughout the charge Judge Friday referred to "this individual" and only used the word "defendant" once when referring to the ...