#### STATE v. YEARWOOD and TABOR.

(Filed 20 December, 1919.)

1. Criminal Law — Burnings—Evidence — Nonsuit — Questions for Jury— Trials.

Evidence in this case tending to show that one of the defendants owed the prosecuting witness money for hauling and delivering lumber, which he paid only in part; that he had deceived the witness as to the amount he owed, and being pressed for payment, suggested leaving the worst lumber, having it insured, setting fire thereto, and collecting the insurance money; that he thereafter actually had the lumber insured for himself; a fire occurred, his codefendant, in his employ, was seen near the place of the fire just before it occurred, acting in a suspicious manner, and that both were tracked from the scene of the fire by a bloodhound, etc., with the *814other evidence in the case, is Held sufficient, upon a motion as of nonsuit, for the determination of the jury, upon the guilt of both defendants of setting fire to and burning the lumber.

2. Criminal Law — Evidence—Bloodhounds.

Where there is evidence that the defendant, indicted for setting fire to and burning lumber, was seen at the place of the crime by a witness, and that he left the place in a suspicious manner, taking a devious route in the direction of his home, going around the ends of logs instead of jumping over them, etc., in corroboration and as a further circumstance tending to convict the defendant of the crime, testimony is competent that the witness put a bloodhound on tracks corresponding with those of the prisoner at the place of the burning, where he had been seen, and that the hound followed the devious route that the witness had taken until it had trailed the prisoner to the bed it was shown he had slept in the night before; and that the witness had many times tested the bloodhound in trailing human beings on other occasions, and had found it accurate.

3. Criminal Law — Alibi—Evidence—Circumstance to Show Guilt.

Where the mother of the prisoner had told the prosecuting witness, in his presence, that the prisoner had been in bed for a period embracing the time the offense had been committed for which he was being tried, and the prisoner had assented, it will be taken that she was endeavoring to set up an alibi for him, and it is' competent to introduce evidence in contradiction as a circumstance tending to show his guilt.

4. Appeal and Error — Objections and Exceptions — Unanswered Questions.

The answer expected of a witness to a question excepted to must be made to appear, that the Supreme Court may pass upon its relevancy and materiality, or the exception will not be considered on appeal.

INDICTMENT, tried before McElroy, J., and a jury, at March Term, 1919, of GRAHAM.

There were originally three counts in the bill of indictment; First, charging that the defendants set lire to and.burned a certain building, the property of 0. 0. Mills; the second, that the defendant Yearwood burned the building, and that defendant Tabor aided and abetted him in it; and the third charge, willful injury to the property of C. 0. Mills by setting fire to and burning certain sawed lumber. The defendants, at the close of the State’s evidence, and again at the close of all the evidence, moved for judgment as of nonsuit against the State. The judge allowed the motion as to the first two counts, and refused it as to the last count. This refusal the defendants allege as error here.

The State’s evidence tended to show that in 1916 the defendant Tabor bought from 0. C. Mills the timber on Mills’ land in Graham County, and Mills was to log it and deliver it at the mill for $7 per thousand feet. Mills logged and Tabor sawed four mill-yards of the timber. The sum of $4 per thousand was to be paid when the logs were yarded, and the balance to be paid when the timber was sold. Tabor fell behind with his *815payments, and. Mills accused bim of cheating in the measurements. They agreed to let one Boyd estimate the yard in question, and he found 191,000 feet on the yard, when Tabor had reported to Mills only 142,000. In the meantime, Tabor had sold the lumber to one Tatham, who had made payments to him on it. Tabor hauled out the first and second yards and sold them without paying Mills for them, and Mills told Tabor he was going to collect his money. Tabor proposed that he would pick out the best lumber, sell it, pay Tatham, then insure the balance, burn it up, get the insurance, and thus get his pay for poor stuff. Mills refused to have anything to do with the offer, and Tabor said: “It has been done, and it can be done again.” Mills immediately went to Mr. Dillard, an attorney, and told him what Tabor had said, and, at the same time, started suit to collect his money, and had Tabor restrained from hauling the lumber off. That was in October, 1911. Tabor paid Mills $525, and agreed to haul out the balance of the lumber and pay Mills, but the lumber had to be carried nine miles over a rough mountain, and he hauled out only 40,000 feet and quit, and in the spring of 1918 Mills asked for the appointment of a receiver. A receiver was appointed, but Tabor again went to Mills and agreed to pay him, and the receiver did not qualify. Tabor did nothing about paying Mills, but on 1 May, 1918, he procured for himself $4,000 fire insurance on the lumber. In May notice was served on Tabor that on 3 June Mills would move at Robbins-ville to have the judge appoint a permanent receiver, but on Saturday night, 1 June, both yards of the lumber, containing nearly a million feet, and separated by a ridge, were simultaneously fired and burned up. In the two yards there were about 150,000 feet of mill culls, two house patterns, and some wagon timber,' owned by Mills, in which Tabor had no interest. Mills was in bed when his family discovered the fire, and he immediately went to the scene, but it was too late to save anything. He went to the homes of the neighbors and informed them to stay away from the yards. When he went to the home of the defendant, Swep Yearwood, who lived with his parents, Yearwood was in bed, and Mills saw him and talked to him. Swep Yearwood’s mother, in his presence, claimed that Swep had not been out of bed for two days, and protested that Swep was innocent, although Mills had not accused Swep, or any one else, of burning the lumber. Mills then placed guards at the lumber yards to keep people from spoiling the tracks, and set out to get bloodhounds. On his way to Murphy he stopped at the home of Tabor, whc lived across the mountain near Marble, waked him, told him of the fire, and tried to get him to help him get bloodhounds to trail the guilty party, but Tabor refused to do anything, and asked Mills to wait till the next day. Tabor had been at a lodge meeting at Marble that night, and had seen the light from the fire, and the first thing that occurred to him was *816that it was bis lumber, but be made no investigation. Tabor promised to meet Mills at Marble the next morning, and Mills went on to Murphy and pboned to Asheville for bloodhounds. He went back to Marble and got breakfast, but Tabor did not meet him there. He went home, got, money to pay for the dogs, and went back to Marble to meet the train, and on the top of the mountain he met Tabor going towards the lumber camps. He again tried to get Tabor to help him about the trailing, but Tabor refused, and went on.

On Saturday afternoon, about dusk, and not long before the fire was discovered, G-arfield Rhodes, who worked for Mills, was in the woods near the Chestnut Gap, looking after one of Mills’ oxen which had its horn torn off. ' While there he saw Swep Yearwood going towards home in a hurry from the direction of the lumber yards. Yearwood did not follow the top of the ridge at the gap, but “circled off to one side” foi some distance and went back to the top, and on toward home.

The bloodhounds were taken to the upper yard late Sunday afternoon, and struck a trail where a man’s track was very plain, a No. 7 or 8 shoe. The dog trailed across the hill to the other burned yard, circled around there a while, picked up the trail, followed it across Chestnut Gap, where Rhodes had seen Yearwood, turned off from the top of the ridge just where Yearwood had gone. Tracks were visible where the dog trailed, and he went on down the ridge, around Yearwood’s fence, through the gap, across the field, into Yearwood’s house, passed the other beds, went up to the bed where Swep had slept the night before, jumped upon it with his forefeet, sniffed, smelled the pillow and quit trailing. There were several large logs in the trail coming down the ridge, and Swep, who had the mumps, had not climbed over any of them, but had gone around the ends, and when he had come to the fence he did not climb over it, but went around to the gap. The dog pursued the same course. Swep was not at home, but was up at the camp. Tabor had left the crowd as soon as the dog struck a trail towards Yearwood’s, and the next-time he was seen he was also at the camp where Swep was. Swep had been at’work for Tabor for a long time, and was then in his employ. Before the dogs came that day, Pat Yearwood said, in Swep Yearwood’s presence, that all he hated about the dogs coming was that they would trail them to some of their houses. After the dogs had trailed to Year-wood’s house and the people had started back across the mountain, Tabor took Mills aside and told him he had $4,000 insurance, of which 80 per cent was collectible, and that if he would hush and drop the matter where it was he would give him one-half of it.

A warrant was issued for Yearwood, but Tabor was not indicted till the grand jury met. Tabor kept Yearwood in his employ, furnished him money to go to the preliminary hearing before a justice at Robbinsville, *817went with Mm to tbe trial, and also bad counsel there to represent himself. Tabor kept Yearwood in his employ, and the two of them employed the same counsel for their defense, and Tabor stayed much with the Yearwoods, and they with him. Tabor received from Tatham advancements of $8 per thousand on the lumber, and he had paid Mills $4 per thousand, and had used the other $4 to pay for sawing it. He had put no money into it himself, and whatever he could have gotten out of the insurance company would have been clear money. The above testimony relates to the motion for a nonsuit.

Other exceptions relate to the admission of evidence, as to the acts of the bloodhound which was put upon the trail of the defendant Yearwood. The defendant contended that the State failed to lay a proper foundation for such evidence, and that the dog had failed to identify Yearwood as the criminal. The witness Dillingham testified:

“I live in Asheville and am a plain-clothes policeman. Some dogs are kept in Asheville by Chief of Police John Lyrle. I brought the dog, Joe, out here. He has been in Asheville for about two years or a little longer, and I have been handling him myself a little over twelve months. He is an English bloodhound. I have used him on about ninety cases since I have handled him. He will trail nothing but a human being. If I set him on the track of a human being-he will not change from one track to another, at least he never has since I have been handling him. I have run eighty-six or eighty-seven cases with him.”

The owner of the property destroyed at once put guards about the burned yards to prevent outsiders from confusing the tracks of the criminal. The fire had “run” over the fallen leaves about the yards some twenty or thirty steps. When Dillingham came with his dog, he found a well-defined track in a damp place near the margin of the burnt place. Ht put his dog on that and he pursued the trail to the other burned mill, took it up there again, and carried it to the house of O. P. Yearwood, the father of the defendant Swep. The track at the starting point, where it was fully defined, was measured. The last track measured along the trail was in Yearwood’s field, in about a hundred and fifty yards from his house. This agreed with the first measurement. Garfield Ehodes, a witness "for the State, had observed the defendant, Swep Yearwood, at Chestnut Gap the afternoon immediately preceding the fire. “When I first saw him,” said he, “he was coming from the lumber, trotting or walking. I don’t know whether he saw me or not. This was between sundown and dark. When I saw him he turned to the left.” The dog followed along this trail and turned off where Swep turned off. Swep was suffering from the mumps that night, and Mills stated, “During the tracking the dog trailed by logs across the trail. There was something like three or four of them, and the dog went around *818tbe ends of them.” Tbe following is Mills’ account of wbat tbe dog did wben they arrived at Yearwood’s bouse:

“Wben we got to tbe bouse Mr. Yearwood and Mrs. Yearwood were sitting on tbe porcb. We went up to tbem and be went along smelling tbe floor into tbe bouse, and scented these beds as be came along until be came to tbe third bed, and scented good at that, and reared up and smelled tbe cover of tbe bed and ran bis nose down tbe pillow as many as three times, and made a sniffling noise with bis nose. This was the bed I saw Swep in tbe night before.”

Dillingham stated: “At tbe bouse Mr. Mills said be was satisfied, and I went down to the branch and got some water, and bad no* more dog work. We loaded tbe dog back in tbe wagon and carried him across tbe mountain. He would not have paid any attention to tbe man we bad been trailing after we loaded him into tbe wagon.”

Mills and Birchfield testified to a conversation with Swep a day or two after tbe burning, in which Swep said: “I understand I burned your lumber”; and further stated, “I bad a bard time burning those two jards and running around tbe hillside and going into tbe bouse.” Birch-.-field testified in tbe same conversation, and immediately on making this .■statement, that Swep said “be was as clear as me or Mills.”

There are some exceptions to evidence to be noticed hereafter.

Defendants were convicted, and appealed from tbe judgment.

Attorney-General Manning and Assistant Attorney-General Nash for ■.the State.

M. W. Bell and R. L. Phillips for defendants.

Walkbe, J.,

after stating tbe relevant facts as above: Tbe evidence in this case was certainly sufficient to be considered by tbe jury upon tbe issue as to defendant’s guilt, and tbe motion for a nonsuit was properly disallowed. Tbe question as to tbe competency of testimony about tbe trailing of a person suspected of guilt by bloodhounds has been- thoroughly well settled by this Court, and we have held that, under certain conditions, such evidence is admissible. Tbe dog which trailed this defendant proved bis own reliability. The' subject is fully treated in S. v. McIver, 176 N. C., 718, and cases therein cited. A ease which comes very near to a perfect likeness of this one is Richardson v. State, 145 Ala., 46, where it was held that, under proper conditions, it is permissible for tbe purpose of connecting a defendant with a crime, to admit evidence, along with tbe other circumstances, that dogs trained to track human beings were put on tbe trail at tbe scene of tbe crime, where circumstances or evidence tend to show tbe defendant bad been, and that after taking tbe trail they went thence to a point where defendant is *819shown to have been after the commission of the act. "Where such evidence is proposed to be introduced, it would, of course, be proper to allow a witness, familiar with the dogs and accustomed to handling them, to testify that they are skilled in the trailing or tracking of men, and within what time, after the making of tracks, the dogs would take up and follow the trail. The court committed no error in allowing the witness Townsend to testify along these lines, citing Hodge v. State, 98 Ala., 10; Simpson v. State, 111 Ala., 6; Little v. State (Ala.), a. 432. Hodge v. State, supra, is also much like the case at bar. Justice McOlellan there said: “We are of the opinion that the fact that the dog, trained to track men, as shown in the testimony, was put on the tracks at the scene of the homicide, and, Taking the trail/ so to speak, went thence to defendant’s house, where he, the defendant, is shown to have been that night after the killing, was competent to go to the jury for consideration by them, in connection with all the other evidence, as a circumstance tending to connect the defendant with the crime; and, of consequence, that the court committed no error in refusing to exclude it.” In Parker v. State, 108 Am. St. Eep., 1021, it was held that if a human track, assumed to be that of the person accused of crime, and which the circumstances in evidence tend to show was his track, was pointed out to the bloodhound trained in trailing human tracks, and such dog trailed the track from where it was pointed' out to him to the residence of the accused, s'ome mile and one-half away, and the course of his pursuit of such track was followed by witnesses, who testified that the dogs followed this same track, which they described, evidence of these facts is admissible as showing a circumstance connecting the accused with the crime. On the trailing of one accused of murder, whose tracks have been followed by a bloodhound, a witness is competent to state his knowledge of, and experience with, such dog as being an animal trained and used for the purpose of running down human beings. A case of prominence in this branch of the law, and frequently cited, is Pedigo v. Com., 103 Ky., 41 (44 S. W., 143), where it was held that testimony as to trailing by a bloodhound is admissible, where it is established by the testimony of some person who has personal knowledge of the fact that the dog in question has acuteness of scent and power of discrimination, and has been trained or tested in the tracking of human beings, and it appears that the dog so trained and tested was laid on the trail, whether visible or not, at a point where the circumstances tend clearly to show that the guilty party has been, or upon a track which such circumstances indicate to have been made by him. The same Court held, in Denham v. Com., 119 Ky., 508, that in a prosecution for crime, evidence of the trailing of defendant by bloodhounds, which were shown to have been of good breeding, and to have been carefully trained in tracking men, and which had tracked and *820aided in. tbe capture of many criminals, was admissible, altbougb tbe pedigree of tbe dogs were not asked about or stated witb particularity.

Tbe Court said,, in Davis v. State, 46 Fla., pp. 137-140: “Tbe adjudged cases on tbis point are few, but uniform in admitting sucb evidence under proper conditions. But in order tbat sucb testimony be admissible, there must be preliminary proof of sucb cbaracter as to sbow tbat reliance may reasonably be placed upon tbe accuracy of tbe trailing attempted to be proved. There should first be testimony from some person who has personal knowledge of tbe fact tbat tbe dog used has an acuteness of scent and power of discrimination, which have been tested in tbe tracking of human beings. Tbe intelligence, training, and purity of breed are all proper matters for consideration and determining tbe admissibility of sucb evidence, as is also tbe behavior of tbe dog in following tbe track pointed out,” citing authorities.

We have referred to tbe above authorities specially, because their facts are so analogous to those of tbe case in band. But tbe principle is so well settled in tbis State tbat it is much too late now to question it. Tbe evidence here fully complies witb tbe rule of admissibility, as stated by us. There is! evidence tbat tbe dog which was set on tbe trail was an English bloodhound of established reputation, and bad been trained and bandied by its owner in a large number of cases where human beings bad been trailed. Tbe conduct of tbe dog was somewhat remarkable,, and indicated tbat be was competent and well fitted for tbe pursuit in which be was employed. Tbe defendant, Swep Yearwood, bad evidently been at one of tbe yards on tbe evening of tbe fire, and was seen by others on bis way back to bis home. He was not traveling tbe ordinary and usual route, near tbe gap, but deviated therefrom, and when be came to-logs be did not step over them, but went around tbe ends, and tbe dog-pursued tbe identical course when trailing him, showing tbat bis scent, was keen and discriminating. He then followed bis tracks to bis home,, and to tbat part of tbe bed in which be bad slept tbe night before, and showed by bis action and conduct tbat be bad found tbis as bis last resting place. Tbe defendant was not pursued further because tbe dog’s, owner, and trainer, deemed it unnecessary. We do not say tbat tbis testimony was at all conclusive, but it disclosed facts and circumstances, sufficient for tbe consideration of tbe jury in connection witb tbe other-evidence in tbe case, and as corroborative thereof. S. v. Moore, 129 N. C., 494, and S. v. Norman, 153 N. C., 592, relied on by defendant1, are materially different from tbe decisions cited by us, and from this., case, and do not apply.

Tbe motion to nonsuit was properly overruled as to both defendants, because there was evidence for tbe jury upon tbe question of guilt. The-circumstances connecting Tabor witb tbe commission of tbe offense were sufficiently strong for submission to tbe jury.

*821We bave reviewed carefully tbe questions of evidence, and find no error in tbe judge’s rulings in regard to it. What was "said by Tearwood’s mother and sister was but a part of a conversation between them, C. C. Mills, and Swep Yearwood. Tbe latter must bave understood tbe significance of it, and that it was calculated and intended to produce tbe impression upon Mills that Swep was innocent because be bad been confined to bis bed for two days and nights, and therefore could not bave been at tbe wood, or lumber, yards. Mills asked tbe defendant if be bad been in bed, and be replied that be bad. He was seen late that afternoon coming from tbe lumber yards and going to bis father’s bouse. This apparent deception on bis part was relevant to tbe issue, because it was a circumstance tending to show guilt. He was pretending to be innocent by impliedly asserting an alibi, when there was evidence that there was no alibi, as be bad actually been seen away from bis borne and returning to it that afternoon. We considered a similar question in S. v. James Lewis, 177 N. C., 555, and it was there held that where a prisoner and bis witnesses bave testified, for tbe purpose of proving an alibi, that be was sick in bed for a period of time extending over two weeks, including tbe day on which tbe rape was committed, for which be was being tried, it is competent, in order to contradict these statements, for tbe State to show that during that time be was several times seen apparently well and going about at other places. Tbe defendant in this case can hardly be beard to deny that bis conduct on this occasion was a virtual representation that be bad been sick and in bed during tbe period covering tbe afternoon on which tbe burning of tbe lumber occurred.

Unanswered questions are not legitimate subjects of exceptions, unless it appears what was expected to be proved, or, in other words, what tbe answer would bave been if it bad been admitted by tbe court. It would be useless to send a case back for a new trial for such alleged errors as tbe witness, when again questioned, may say that be knows nothing about tbe matter, and if so, our labor will bave been in vain, and worse it would be, for we would bave uselessly prolonged litigation. This kind of • exception has frequently been disallowed. It is said in Gibson v. Terry, 176 N. C., 533 : “There is another reason why tbe exception cannot be sustained. While tbe question indicates what tbe defendant was endeavoring to prove, it does not appear in tbe case on appeal what tbe witness would bave testified to. He might bave answered ‘Yes’ or No.’ In Knight v. Killbrew, 86 N. C., 402, tbe Court says: ‘It is a settled rule that error cannot be assigned in tbe ruling out of evidence unless it is distinctly shown what tbe evidence was in order that its relevancy may appear, and that a prejudice has arisen from its rejection.’ ” Justice Allen cites Knight v. Killbrew, supra, and approves tbe quotation therefrom in Stout v. Turnpike Co., 157 N. C., 367.

*822There are several other exceptions to evidence, but it is so apparent they were not well taken we will not discuss them, as it would protract the opinion beyond its proper limits without any corresponding benefit. We have carefully scanned the record, and no error is found.

No error.