BROGDEN, J., dissenting.
STACY, C. J.,
after stating the case: The prisoner stressfully contends that his motion for judgment of nonsuit, made first at the close of the State's evidence and renewed at the close of all the evidence, should have been allowed, but we are of opinion that the case is one calling for a jury verdict. The motion to dismiss under C. S., 4643, requires that the court ascertain merely whether there is any evidence to sustain the allegations of the indictment, and not whether it be true or the jury should believe it. S. v. Lawrence, post, 562.
True, the evidence is circumstantial, but circumstantial evidence is a recognized and accepted instrumentality in the ascertainment of truth. S. v. Plyler, 153 N.C. 630, 69 S.E. 269.
Speaking to the subject in S. v. White, 89 N.C. 462, Merrimon, J., delivering the opinion of the Court, said:
"It is well settled law that the court must decide what is evidence, and whether there is any evidence to be submitted to the jury, pertinent to an issue submitted to them. It is as well settled that if there is evidence to be submitted, the jury must determine its weight and effect. This, however, does not imply that the court must submit a scintilla — very slight evidence; on the contrary, it must be such as, in the judgment of the court, would reasonably warrant the jury in finding a verdict upon the issue submitted, affirmatively or negatively, accordingly as they might view it in one light or another, and give it more or less weight, or none at all. In a case like the present one, the evidence ought to be such as, if the whole were taken together and substantially as true, the jury might reasonably find the defendant guilty.
"A single isolated fact or circumstance might be no evidence, not even a scintilla; two, three or more, taken together, might not make evidence in the eye of the law, but a multitude of slight facts and circumstances, taken together as true, might become (make) evidence that would warrant a jury in finding a verdict of guilty in cases of the most serious moment. The court must be the judge as to when such a combination of facts and circumstances reveal the dignity of evidence, and it must judge of the pertinency and relevancy of the facts and circumstances going to make up such evidence. The court cannot, however, decide that they are true or false; this is for the jury; but it must decide that, all together, they make some evidence, to be submitted to the jury; and they must be such, in a case like the present, as would, if the jury believed the same, reasonably warrant them in finding a verdict of guilty," citing as authority for the position Cobb v. Fogalman, 23 N.C. 440; S. v. Vinson, 63 N.C. 335; Wittkowsky v. Wasson, 71 N.C. 451; S. v. Massey, 86 N.C. 658; Imp. Co. v. Munson, 14 Wall., 442; Pleasants v. Fonts, 22 Wall., 120.
Applying this principle to the present case, we think the incriminating evidence, taken in its totality, is sufficient to be submitted to the jury, but, of course, we express no opinion as to its weight. S. v. Young, 187 N.C. 698, 122 S.E. 667, and cases cited.
We are disposed to agree with the prisoner, however, in his insistence that the evidence of W. C. York, relative to the action of the bloodhounds, should have been excluded from the jury's consideration. S. v. Norman, 153 N.C. 591, 68 S.E. 917.
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. S. v. McIver, 176 N.C. 718, 96 S.E. 902; S. v. Wiggins, 171 N.C. 813, 89 S.E. 58; S. v. Spivey, 151 N.C. 676, 65 S.E. 995; S. v. Freeman, 146 N.C. 615, 60 S.E. 986; S. v. Hunter, 143 N.C. 607, 56 S.E. 547; S. v. Moore, 129 N.C. 494, 39 S.E. 626.
The incompetency of the evidence in the instant case lies in the fact that the action of the bloodhounds was such as to afford no reasonable inference of the identity of the prisoner as the guilty party.
Nor can we safely say that this evidence is so palpably weak and uncertain as to render its admission harmless. There is no telling how far the prisoner's case was affected by it. "When there is error, its Immateriality must clearly appear on the face of the record in order to warrant this Court in treating it as surplusage." Pearson, C. J., in McLenan v. Chisholm, 64 N.C. 324.
For error, as indicated, a new trial must be awarded; and it is so ordered.
New trial.