
    STATE v. HARDY WIGGINS and MERRITT MILLER.
    (Filed 31 May, 1916.)
    1. Homicide — Identification—Evidence—Corpus Delicti.
    Where upon the trial for murder there is sufficient evidence that it was committed at a certain place on a country road about 7:20 a. m. of a certain day, and the defense is failure of identification, testimony offered on behalf of the defendants that two other men were seen at the place the evening before, without direct evidence connecting them with the corpus delicti, is inadmissible.
    2. Homicide — Evidence—Impeachment—Accusation.
    A question asked a State’s witness, on cross-examination, for the purpose of impeachment, if he had not been accused of stealing a hog from a certain person, and not whether he had been convicted thereof, is foreign to the issue, and properly excluded.
    
      3. Evidence — Homicide—Bloodhounds—Corroboration.
    Where the testimony on a trial for a homicide tends to show a murder had been committed, and that a bloodhound had been put upon the well-guarded human tracks at the place, which thereby trailed the defendants and identified them, and that the dog was of pure blood, had been trained for such purpose, and the action of the bloodhound is corroborative of the competent dying declaration of the deceased that the defendants had killed him, it is competent, and the question as to whether the trail was properly followed is one for the jury.
    4. Homicide — Evidence—Dying Declarations.
    Where upon a trial for a homicide there is evidence that the deceased was shot at 7:20 a. m. and when found stated there was no use for a doctor, for he would die, and identified the prisoner, then coming up, as the man who had shot him, and it appears that he died from the wound the evening of the same day, the declarations of the deceased are competent as dying declarations. _
    5. Homicide — Identification — Verdict — Instructions — Degrees of Murder— Statutes.
    Where there is evidence that a murder in the first degree has been committed, and the prisoner on trial relies only upon proving an alibi as his defense, the verdict will be considered in connection with the charge of the court, and where the court has properly instructed the jury to find the prisoner guilty either of murder in the first degree or not guilty, a verdict of guilty necessarily fixes the offense as in the first degree, and is a sufficient compliance with the statute, Revisal, sec. 3271.
    Appeal by .prisoners from Ferguson, J., at September Term, 1915, of GrRAI-IAM.
    
      Attorney-General Biclcett and Assistant Attorney-General Oalvert for the State.
    
    
      Alley & Leatherwood, Sherrill & Harwood, and Dillard & Hill for prisoners.
    
   Clare, O. J.

The prisoners were indicted for murder, tbe bill charging that they “willfully, premeditatedly, deliberately, and feloniously, and of tbeir malice aforethought, did till and murder Phillip L. Phillips.”

There was evidence, which the jury believed, that the prisoners lay in wait and killed the deceased from ambush. There was no evidence tending to show any other state of facts, and the sole issue of fact was as to the identity of the prisoners, that is, whether they were the persons who slew the deceased. The jury returned for their verdict that they found “the prisoners at the bar, and both of them, guilty of the murder and felony whereof they stand indicted.”

The court had refused to charge the jury, as prayed by the prisoners, that “under the evidence of this case they could return a verdict of guilty of murder in the first degree, or guilty of murder in the second degree, or not guilty.” Tbe court properly refused to so charge, for if tbe jury were satisfied beyond a reasonable doubt tbat tbe prisoners slew tbe deceased in tbe manner in evidence, tbey were guilty of murder in tbe first degree; and if it was not found beyond a reasonable doubt tbat tbe deceased was thus slain by tbe prisoners, then, as tbe court instructed, tbe jury should have returned a verdict of not guilty.

The jury .found tbat beyond a reasonable doubt tbe prisoners slew tbe deceased, and found them guilty as charged in tbe indictment.

Tbe deceased was shot about 1:30 a. m., 23 August, 1915, and died about 7 p. m. of tbe same day.

Tbe evidence is tbat tbe deceased left borne at 7:20 a. m. tbat day, riding a mule down tbe road towards Robbinsville. His son and daughter soon after went to tbe cow lot to milk, wben tbey beard a gun fire and beard tbeir father call twice quickly. Tbe son got one Buck Campbell to go with them, and, going down the road, found tbeir father sitting with bis back against a tree and tbe mule bitched to tbe tree. This was about three-fourths of a mile from tbe place where tbe deceased said be bad been shot, and tbe tracks of tbe mule showed tbat it commenced running at tbat point. Tbe son asked bis father tbe trouble, and be said tbat Hardy Wiggins or Merritt Miller bad shot him at Hazel Branch, near a big chestnut log; tbat be saw them as be passed there. When asked if be wanted a doctor, be said, “There is no use.” Just at tbat time tbe prisoner, Merritt Miller, came up, wben tbe deceased said: “You are tbe man that shot me.” Miller denied this, and tbe witness says: “Miller was in a trembling way and could not bold bis bands still wben be walked up to where (witness’s) father was. This took place right wben Miller walked up.”

After tbe arrival of other people, tbe deceased was carried home on a stretcher, and in passing tbe chestnut log be showed them where tbe two men were wben be bad passed. He said tbat one of tbe men shot after be passed them, tbe bullet entering about 2 inches to tbe right of tbe backbone and coming out at tbe breast. There was testimony of ill-feeling on tbe part of tbe prisoners towards tbe deceased, and threats by each of them tbat tbey would kill him. When tbe deceased stated tbat tbe prisoner shot him, and pointed out where be stood, be said tbat be would die, and be did die tbat evening. Tbe judge properly admitted bis statements as dying declarations.

Bloodhounds were brought from Tennessee, and after being put on tbe tracks, which bad been carefully guarded, around tbe chestnut log, tbey trailed until tbey came to tbe home of tbe prisoner Wiggins and marked him while be stood in tbe yard. Tbey then followed tbe track and met tbe deptity sheriff, who bad Miller in custody, whereupon tbe dogs tbat were trailing tbe track ran up to Miller and marked him also.

Exceptions 2, 8, 6, 7, 8, 9, 12, 13, 14, 21, 24, 25, 26, 29, 30, 31, 32, and 33 are not mentioned in the brief of tbe appellants, and are therefore waived. Rule 34; S. v. Spivey, 151 N. C., 676.

Exception 1 is because on objection by the State the court excluded the evidence offered to show that two other men were seen the evening before near the spot where deceased was shot. Testimony tending to show that another than the prisoners committed the crime is inadmissible unless there is direct evidence connecting the other with the corpus delicti, which was not the case here. S. v. Millican, 158 N. C., 621; S. v. Lambert, 93 N. C., 623; S. v. Beverly, 88 N. C., 633; S. v. Baxter, 82 N. C., 604; S. v. Bishop, 73 N. C., 45; S. v. White, 68 N. C., 159.

A witness for the State was asked on cross-examination, for the purpose of impeaching him, if he had not been accused of stealing a certain person’s hogs. On objection, this was properly excluded. The question was not whether he had been convicted, but whether he had been accused, and it is certainly not competent to ask a question foreign to the issue in order to impugn the credit of the witness. It is not stated what the witness’s answer would have been. Carr v. Smith, 129 N. C., 232; S. v. Glisson, 93 N. C., 508.

Exceptions 5, 10, 11, 15, 16, 17, 18, 19, 20, 22, 23, 27, and 28 relate to the admission of testimony as to the trailing of the prisoners by bloodhounds. ' This testimony has always been held competent within the limits observed in this case. S. v. Norman, 153 N. C., 591; S. v. Spivey, 151 N. C., 676; S. v. Freeman, 146 N. C., 615; S. v. Hunter, 143 N. C., 607; S. v. Moore, 129 N. C., 494, and Chamberlayne on Evidence, sec. 1760.

In S. v. Norman, 153 N. C., 591, the Court held that in order to render such testimony competent it must not only be shown that the dog is of pure blood and of a stock characterized by acuteness of sense and power of discrimination, but must also be itself possessed of these qualities and have been trained or tested in their exercise in the tracking of human beings. The testimony of the owner and trainer of the dogs fully measured up to these requirements, and need not be discussed.

This having been shown to the satisfaction of the court, the evidence of their action in trailing was properly submitted to the jury. Whether they properly tracked the prisoners and identified them was for the jury, unless the evidence was manifestly insufficient to be submitted to them. In S. v. Moore, 129 N. C., 494, relied upon by the prisoners, the dog failed to follow any track. The evidence of the trailing in this case is very full and the jury found it sufficient. It was used in corroboration of the dying declarations of the deceased. The criticisms of the counsel for prisoners here were directed to the weight to be given this testimony, but that was a matter for the jury, and not a question of law for this Court.

Tbe last exception is to tbe form of tbe verdict rendered, upon tbe ground tbat tbe statute requires tbe jury to say in wbat degree of murder tbe prisoners were convicted. Tbe statute, Revisal, 3271, provides: “Nothing contained in tbis statute dividing murder into degrees shall be construed to require any alteration or modification of tbe existing form of indictment for murder, but tbe jury before whom tbe offender is tried shall determine in their verdict whether tbe crime is murder in .the first or second degree.” Tbe object of this statute is, of course, to place it beyond doubt in wbat degree of murder the prisoner was convicted. Tbe verdict must be construed according to tbe charge and tbe evidence, and when these make it certain beyond question, tbe law has been complied with. S. v. Gilchrist, 113 N. C., 673.

In tbis case tbe court instructed tbe jury tbat they should find tbe prisoners “either guilty of murder in tbe first degree or not guilty.” Tbe testimony was tbat tbe prisoners waylaid tbe deceased, and tbe only defense was an alibi. Upon tbe evidence for tbe State, and tbat for tbe defense, and tbe charge, tbe jury bad no alternative but to return a verdict of guilty of murder in tbe first degree, as charged, or not guilty. Under these circumstances tbis Court has always sustained a verdict like tbis.

In S. v. Spivey, 151 N. C., 676, tbe Court held: “When tbe entire evidence shows, and no other reasonable inference can be fairly drawn therefrom, tbat tbe murder was committed either by lying in wait or in an attempt to perpetrate a felony, and tbe controverted question is tbe identity of prisoner as tbe murderer, tbe trial judge does not commit error in charging tbe jury to render a verdict of guilty of murder in tbe first degree or not guilty.”

Under tbis charge, and upon tbis evidence, tbe jury bad no alternative but to find tbe prisoners guilty of murder in tbe first degree or not guilty. If there bad been tbe slightest doubt possible, tbe prisoners’ counsel should, and certainly would, have asked for tbe jury to be polled and to indicate in wbat degree of murder each juror found tbe prisoners, and each of them, guilty. It would be trifling with tbe most solemn administration of justice to bold tbat on a trial, especially of tbis kind, in which every point has been defended, there was any doubt on tbis charge and evidence as to tbe finding of tbe jury.

In S. v. Gilchrist, 113 N. C., 673, where tbe indictment was in tbe same form as tbis, and tbe court charged tbat tbe crime was murder or nothing (as it did in tbis case), and tbe jury found tbe accused guilty of tbe felony of murder in tbe manner and form as charged in tbe bill of indictment (as it did here), tbe Court held tbat upon tbe evidence only a verdict in tbe first degree was warranted, and tbat tbe general verdict was in response to tbe charge of murder in tbe first degree and a full compliance with, tbe above statute, the Court saying (citing several cases) : “The verdict should be taken in connection with the charge o£ his Honor and the evidence in the case.” This has been cited repeatedly since, see Anno. Ed., especially S. v. May, 132 N. C., 1021, and the very recent case of S. v. Walker, 170 N. C., 716.

In this last case the foreman responded, “Guilty of murder in the first degree,” and the prisoners having called for a poll of the jury, each juror responded simply, “Guilty.” The Court held that in that case (as in this) the question being solely as to the identity of the prisoners, and the judge having properly charged the jury upon the evidence to return a verdict of guilty in the first degree or not guilty, the verdict must be construed in connection with the charge and the evidence, and there could be no reasonable intendment that the verdict could have meant anything else than murder in the first degree, “for there was no evidence either of murder in the second degree or of manslaughter, as indeed the court had told them,” adding: “Any other interpretation would be a 'refinement’ and a miscarriage of justice.”

The prisoners rely upon S. v. Truesdale, 125 N. C., 696, and S. v. Jefferson, ib., 712. In the former case the record shows that there was question on the trial upon the evidence as to the degree of murder of which the prisoner was guilty, and the jury should have specified the degree. In the latter case a new trial was granted upon the incompetency of the evidence of dying declarations and of other evidence, the Oourt adding that the verdict should have specified also of what degree of murder the prisoner was guilty.

In this case the entire evidence and charge and trial were directed to the one question as to the identity of the prisoners with the murderer, and the verdict can be construed, reasonably, in no other light than in answer to that issue.

No error.  