Opinion
30975.
DECIDED SEPTEMBER 19, 1945.
Burglary; from Haralson superior court — Judge Mundy. June 1, 1945.
Claude V. Driver, for plaintiff in error.
Hal C. Hutchens, solicitor-general, W. A. Foster Jr., contra.
1. The evidence sustains the verdict.
2. There is no merit in either of the two special grounds.
DECIDED SEPTEMBER 19, 1945.
The defendant was convicted of burglary, and was sentenced to from five to ten years in the penitentiary. His motion for new trial, containing the general grounds and two special grounds, was overruled, and he brings the case here for review.
Leonard House owned and occupied in Bremen, Georgia, Haralson County, a dwelling house which was broken and entered. Entry was obtained by breaking through the living-room window on the east side of the house. The screen was removed, the window raised, and the window glass was broken to unlock and raise the window. The entry was discovered about four o'clock in the morning. House, upon discovery that the house had been entered and property was missing, immediately called the police of Bremen, who upon arrival called the sheriff of Haralson County and advised them to call the Carroll County convict warden for some bloodhounds. Two well-trained bloodhounds were brought within about an hour. A trail was struck beginning at the screen, which had been removed from the window. The trail was followed through a field, through a pasture, and through various other hazards, finally arriving at the door on the porch of the defendant. Later the officers and others backtracked and found the leather billfold which had been lost by House, identified by pictures therein, and his social-security card. No stolen property was found at the home of the defendant. The defendant's shoes and the bottoms of his pants were wet. There was dew and dampness along the trail through which the dogs went sufficient to cause his shoes and pants to be damp. The defendant's tracks and tracks followed by the dogs, upon comparison, were found to be alike, his shoes having special identification marks which showed up in the tracks. The billfold, when found on the trail, was partly burned.
Leonard House testified that, when he retired the windows and screens were in order; that no one could enter the house in any way except through the window from which the screen had been removed and the window glass broken; that he lost his pants, a leather billfold containing $10 in money, and some pocket change, about 75 cents; that the property was taken from the house and nothing except the pants was recovered, although he saw the leather billfold again after an attempt had been made to burn it and the money had been removed; that bloodhounds were brought by officers after the burglary was discovered, whereupon the bloodhounds struck a trail which led directly to the house of the defendant.
T. L. House, father of Leonard House, living in the same home, testified that, his pants were also stolen, and were found at the door of the living-room, outside the bedroom occupied by the witness; that the glass of the living-room window was broken and the window raised; that the screen had been removed; that a work-bench had been brought from the garage to the window and used as a means of reaching the window; that the screen, was cut; that the bloodhounds went in the direction of the home of the defendant; and that Leonard House's billfold and other property were found on the trail; and that the witness recognized and identified the partly burned billfold and social-security card as the property of his son, Leonard House.
A. B. Skidmore, a police officer of the City of Bremen, testified in substance for the State that, he made an investigation at the home of Leonard House; that bloodhounds were called, and a hot trail led to the home of the defendant, who was dressed at four o'clock in the morning; that the defendant's pants-leg was wet about the top of his shoes; that the "dogs when they saw him, they wanted to get on him, they acted that way. They did not act that way for anybody else." This witness further testified, among other things, that the tracks found on the trail and the tracks of the defendant looked like the same tracks, and that the peculiar facts or characteristics of the tracks were the same.
J. C. Couch testified for the State that, he had been employed by Carroll County for six years; that for five years he had had two registered Maryland bloodhounds in constant use there, with daily practice trailing men; that the dogs were good and could even follow a cold trail accurately, and readily followed the hot trail under discussion; that the dogs never failed to follow the right trail; that they followed a direct hot trail to the home of the defendant; that the defendant, when questioned, said he had not come down the trail or road in question; that the tracks on the trail were compared with those of the defendant, and "they perfectly fit the slipper that he, the defendant, had on." This witness further testified that he and others went back over the trail and found the stolen pants and the pocketbook, the latter partly burned.
The defendant made a statement, in which he denied the burglaries, and stated that "the boys got tired and wanted to get it over with, and brought dogs to my house. . . They pulled the dogs down there. . . I am not guilty of this."
1. It is contended that the evidence is insufficient to sustain the verdict of guilty. It will be noted that the evidence is positive that the burglar entered the building by removing a screen, breaking a glass in a window, and entering through the window. The defendant contends that the conviction rests mainly upon the acts of the bloodhounds. It was clearly established that the dogs were Maryland bloodhounds, registered, well-trained, with five-years' practice trailing people. See Aiken v. State, 16 Ga. App. 848 ( 86 S.E. 1076), where this court said: "Before evidence of the conduct of a bloodhound alleged to have been put upon the trail of the defendant can properly be received, it should appear that the dog was able, at the time and under the circumstances, to follow the scent of a person. When such foundation has been laid and the evidence showing the conduct of the dog has been received, the jury, before they will be authorized to consider it as evidence against the accused, must be satisfied that the dog was certain and reliable in following the trail of the human footsteps; and, if they find from the evidence touching the matter that the dog was and is reliable and accurate in this regard, then the evidence of the dog's work and its result may be considered, together with all the other evidence in the case, as a circumstance in determining the guilt of the accused." Nor does it matter, as contended by the defense, that only one of the dogs was satisfied as to the conclusion, if in fact the evidence is such as to lead one to such deduction. Fite v. State, 16 Ga. App. 22 (4) ( 84 S.E. 485). It thus follows that there is no merit in the contention that the conduct of the bloodhounds should not be considered. This evidence is sufficient to sustain the verdict of guilty.
There is no merit in the contention that there is a variance in the allegata and the probata.
2. Special ground 1 complains of the following excerpt from the charge of the court: "And look to the evidence and the defendant's statement, and determine whether or not he is guilty. . . That is for you to determine from the evidence and the defendant's statement, and that's all the guide you have, the evidence that has been submitted to you on the trial of the case and the defendant's statement." The court further charged: "The defendant has a right to make to the court just such statement in his defense as he sees proper to make. The defendant is not under oath, but, as I said, he has a right to make just such statement as he sees proper in his own defense. You have a right to believe that statement in preference to the sworn testimony in the case, if you think it deserves to be believed in preference to the sworn testimony in the case. You have a right to believe it in part and disbelieve it in part, or you can disbelieve it altogether. In other words, it is for you to give the defendant's statement just such weight and credit as you think it deserves in your honest search for the truth as to what the facts of the case are." The case of Rouse v. State, 135 Ga. 227 (3) ( 69 S.E. 180), is cited in support of the contention that the case should be reversed because of this allegedly erroneous charge. In our opinion the Rouse case is not sufficient authority for the position taken by counsel for the defendant. Our Supreme Court in Merritt v. State, 152 Ga. 405 (4) ( 110 S.E. 160), discusses the former ruling of that court in the five-to-one decision, and approved a charge of almost the exact phraseology. It is true, however, that there were two dissents to that ruling. But the explanations from both the concurring and the dissenting Justices show an undoubted variance of opinion. The wordage of the decision in the Merritt case leads us to believe that the former decision was abandoned. In these words the Justice writing the decision renounced the decision in the Rouse case: "That decision [meaning the decision in the Rouse case], however, was rendered by only five Justices, and therefore is not binding authority. The majority of the court as now constituted is constrained to disagree to the soundness of that ruling." In Williams v. State, 57 Ga. App. 176 ( 194 S.E. 822), Judge Guerry, with the concurrence of the other Judges, followed the ruling in the Merritt case, and thereby approved the charge now under consideration. In any event, we need not follow either line of decisions and thought, because the facts of the Rouse case and the facts in the case at bar are so different that the distinction is conclusive.
3. Special ground 2 complains of the following excerpt from the charge: "And the effect of that plea of not guilty is to deny each and every material allegation made in each indictment." The movant avers that this charge was error, harmful and prejudicial to the defendant. We can not agree with able counsel that this excerpt, when viewed in the light of the complete charge, was harmful and prejudicial. The entire charge was comprehensive, inclusive, and covered the points of the case in a manner which would leave no incorrect ideas in the minds of the jurors. We do not see how a juror could be confused by the charge so as to seek for more evidence to overcome the presumption of innocence which is the right of every person at the bar. When viewed in the light of the entire charge, this excerpt contains no harmful error.
The court did not err in overruling the motion for new trial for any of the reasons assigned.
Judgment affirmed. Broyles, C. J., and MacIntyre, J., concur.