State v. . Combs

CONNOR, J. The motion of the Solicitor for the State that the two indictments in which both defendants were charged with the same crimes, be consolidated for trial, was addressed to the discretion of the court. The court is expressly authorized by statute in this State to order the consolidation for trial of two or more indictments in which the defendant or defendants are charged with crimes of the same class, which are so connected in time or place as that evidence at the trial of one of the indictments will be competent and admissible at the trial of the others. C. S., 4622. S. v. Cooper, 190 N. C., 528, 130 S. E., 180; S. v. Jarrett, 189 N. C., 516, 127 S. E., 590; S. v. Malpass, 189 N. C., 349, 127 S. E., 248. In S. v. Lewis and Padrick, 185 N. C., 640, 116 S. E., 259, it is said: “If the several bills could have been incorporated in a single indictment as separate counts, there was no sufficient legal objection to the order of consolidation, and in the absence of legal objection the question was addressed to the sound discretion of the court.” *675 In the instant case, it appears that no objection was made by the defendants or by either of them to the consolidation at the time the order was made by the court. The exception first noted in the case on appeal served by defendant’s counsel on the Solicitor cannot be considered in this Court. The assignment of error based on the exception to the consolidation of the two indictments for trial, cannot be sustained. There is no statute in this State relative to the manner in which a jury shall be empaneled for the trial of either a civil or criminal action. The language used by the clerk in his address to the jurors, after they had been duly sworn, was manifestly inadvertent. The judge might very well have directed the clerk to address the jury in the customary language. His failure to do so, however, upon defendant’s objection to the language used by the clerk, was not such error as entitles defendants to a new trial. It does not appear that either of the defendants has been prejudiced by the irregularity. There was evidence tending to show that the witness offered by the State as a finger-print expert, having completed a course of instruction approved by the Superintendent of the Finger Print Department of the United States Army and Navy, requiring two years of study, was qualified to testify' as an expert in the art of identification by comparison of finger prints. For this reason, the finding by the trial court that the witness was an expert in the art, and was qualified to testify as such, is not reviewable by this Court on defendant’s appeal. S. v. Wilcox, 132 N. C., 1120, 44 S. E., 625, and numerous cases in which it is uniformly held that whether a witness is an expert is a preliminary fact to be found by the trial court, and that when there is any evidence to sustain such finding, it is conclusive on appeal. Geer v. Durham Water Co., 127 N. C., 349, 37 S. E., 474. The testimony of the witness that he had compared a finger print taken by him of the little finger of the left hand of the defendant, Hoffman Wells, with a finger print discovered by the witness on the bottle which the evidence showed had been moved from the inside ledge of the window in the building which had been entered during the night of 22 May, 1930, after D. E. Koontz, the proprietor of the pressing club, had left the building, and that in the opinion of the witness, formed upon such comparison, the finger prints were identical, was competent as evidence tending to show that the defendant, Hoffman Wells, moved the bottle during said night. This fact, if found by the jury, was relevant to the question involved in the issue submitted to them. Assignments of error based upon exceptions to the finding by the court that the witness was an expert, and to the admission of the testimony of the witness, cannot be sustained. *676 Tbis is apparently tbe first ease in wbicb tbis Court bas been called on to decide tbe question as to wbetber testimony tending to identify a person by means of finger prints is competent as evidence for tbat purpose. We see no reason wby sucb testimony, when tbe witness whose testimony is offered as evidence bas first been found by tbe trial court to be an expert in tbe art, is not competent. Tbe probative value of tbe evidence is, of course, for tbe jury. It bas been so beld by courts of other jurisdictions. In Willoughby v. State of Mississippi, reported in 63 A. L. R., at page 1319, it is said: “Tbe evidence of finger print identification bas, for a long time, been recognized by tbe courts of tbe country as admissible in evidence in order to establish tbe identity of a party when tbe comparison of a developed finger print with tbat of the party alleged to have made it is shown; and sucb testimony bas been received in India, England and tbe United States. Tbe courts of tbe country have yielded to tbe assertion of science tbat tbe finger prints of each individual may, by experts skilled in tbe science, be differentiated from those of any other person.” See full annotation in 63 A. L. R., 1324, supplementing previous annotations in American Law Reports. Other assignments of error relied upon by defendants on their appeal to tbis Oourt have been considered. They cannot be sustained. Tbe judgment is affirmed. No error.