#### STATE v. HOWARD COMBS and HOFFMAN WELLS.

(Filed 29 April, 1931.)

1. Criminal Law I f — Motion for consolidation of actions is addressed to discretion of trial court.

When not subject to legal objection, a motion by tbe solicitor to consolidate two criminal actions for trial is addressed to tbe discretion of tbe trial judge, and where prosecutions for housebreaking and larceny • on two occasions during the same night against two defendants are consolidated without objection, and the charges are so connected in time and place that evidence of guilt in one action is competent in the other, the order of the trial judge consolidating the actions will not be held for error on appeal. O. S., 4622.

2. Jury C a: Appeal and Error J e — Inadvertence in empaneling jury held not to constitute prejudicial error.

Where two defendants on trial for criminal offenses have been convicted by the jury which has been duly sworn, a mistake by the clerk in empaneling them, that they should “well and truly try the case between O. and W.,” failing to say the action was by the State of North Carolina, will not alone be held for reversible error, it appearing that the trial proceeded without prejudice to the defendants.

3. Evidence K c — Finding that witness is expert is conclusive when there is evidence supporting such finding.

The qualification of a witness to testify as an expert in finger prints is a preliminary matter for the court, and his finding that a witness is an expert is not reviewable on appeal when there is evidence to support his finding.

4. Criminal Law G p — Finger print testimony hy expert held competent, the probative force being for the jury.

It is competent for a witness who has qualified as an expert in finger prints to testify that finger prints found on a bottle at the place of the crime were identical with the finger prints taken of the defendant, the probative force of such testimony being for the jury.

*672Appeal by defendants from *Quiclcél, J.,*at November Special Term, 1930, of Surry.

No error.

Two indictments pending in tbe Superior Court of Surry County were, on motion of tbe Solicitor for tbe State, consolidated for trial.

In eacb of said indictments, botb tbe above-named defendants were charged *with the*commission of felonies, to wit, housebreaking (C. S., 4235), and larceny of property exceeding in value tbe sum of twenty dollars. (C. S., 4252.)

In one of said indictments it was alleged tbat on 22 May, 1930, tbe defendants broke into and entered a building in Surry County, and stole therefrom an automobile, tbe property of John Thomas, of tbe value of $200; in tbe other indictment, it was alleged tbat tbe defendants on tbe same day, to wit, 22 May, 1930, broke into and entered another building in Surry County, and stole therefrom certain articles of wearing apparel, to wit, men’s suits and women’s dresses, tbe property of D. E. Koontz, of the value of $10Q.

Neither of tbe defendants objected to tbe consolidation of tbe two indictments, at tbe time tbe order for such consolidation was made by tbe court. After tbe indictments bad been consolidated, each defendant entered a plea of not guilty, and jurors were thereupon duly chosen and sworn to try *the*issue between *the*State and the defendants.

After tbe jurors were sworn, the clerk of tbe court addressed them as follows:

“Gentlemen of tbe jury, you have been sworn, and you are now empaneled to well and truly try this case between Hoffman Wells and Howard Combs. You will sit together, bear tbe evidence and render your verdict accordingly.”

At tbe trial, tbe evidence introduced by tbe State tended to show tbat tbe crimes charged in tbe indictments bad been committed as alleged therein. Tbe evidence introduced by tbe defendants did not tend to show the contrary. The defendants denied tbat they had broken into or entered either of tbe buildings described in the indictments, and denied tbat they bad stolen either the automobile or tbe wearing apparel. Their evidence tended to show tbat -each of tbe defendants was at bis home in tbe town of Mount Airy in bed and asleep at tbe time tbe crimes were committed.

John Thomas, a witness for tbe State, testified tbat during tbe night of 22 May, 1930, bis automobile — a Chevrolet roadster — was stolen from Hawke’s Garage, which is located in tbe rear of bis home in tbe town of Mount Airy. Tbe automobile was worth $250. It was returned to tbe witness tbe next day by police officers of *the*town of Mount Airy.

D. E. Koontz, a witness for tbe State, testified tbat during tbe night of 22 May, 1930, tbe building located in the town of Mount Airy, and occupied by tbe witness as proprietor of a pressing club, was entered *673through, a window which faced on the street, and that several men’s suits and women’s dresses, of the value of $100, were stolen from the building. These articles of wearing apparel, which were the property of the witness, were returned to him the next day by police officers of the town of Mount Airy.

The defendants, each testifying as a witness in his own behalf, admitted that they were together during the afternoon preceding the night when the buildings were entered and the property stolen, in the vicinity of the building occupied by D. E. Koontz as a pressing club. They remained together during the evening until about 10 o’clock, when they separated, each going to his own home for the night.

A police officer of the town of Mount Airy testified that he was on duty, patrolling the streets of said town, during the night of 22 May, 1930. At about 2 o’clock a.m., this witness saw on the streets of said town a Chevrolet roadster, driven by the defendant, Howard Combs. There were two men in the roadster when the witness first saw it at a distance of 300 or 400 yards from Koontz’s pressing club. The witness recognized one of these men, the driver, as the defendant, Howard Combs. He did not recognize the other man in the roadster, and did not undertake to identify the defendant, Hoffman Wells, as the companion at the time of the defendant, Howard Combs. The witness followed the roadster until it was driven out of town. When the driver of the roadster realized that the witness, an officer, was pursuing him, he drove the automobile off the road, and into a meadow. He stopped the automobile near a hay-stack. The two men, who were in the automobile when the witness first saw it on a street in the town of Mount Airy, jumped and ran, leaving the motor running and the lights burning. The witness pursued them through the meadow, but was unable to overtake them. Both men escaped. The grass in the meadow was wet with dew.

When the witness went to the automobile he found a number of .men’s suits and women’s dresses in it. The next day the automobile was identified by John Thomas as his property. It was delivered to him by the police officers. The men’s suits and women’s dresses were identified by D. E. Koontz as his property. They were delivered to him by the police officers.

A witness for the State testified that he discovered the next day a track on the ground near the window in the building occupied by D. E. Koontz as a pressing club. There was evidence tending to show that this track was made by the shoe found on the foot of the defendant, Hoffman Wells, when he was arrested. There was also evidence tending to show that the bottom of the pants worn by the defendant, Hoffman Wells, the morning after the automobile and wearing apparel were stolen, were wet.

*674Ear the purpose of showing that the defendant, Hoffman Wells, broke into and entered the building occupied by D. E. Koontz, as a pressing club, during the night of 22 May, 1930, the State introduced as evidence the testimony of a witness who testified that some time during the succeeding day he examined some bottles, which the evidence showed had been moved during the said night from the inside ledge of the window through which the building was entered; that on one of these bottles the witness discovered a finger print which he developed by a method in general use by finger-print experts; that by means of a magnifying glass he compared this finger print with a finger print which the witness made of the little finger on the left hand of the defendant, Hoffman Wells; and that, in the opinion of the witness, the two finger prints were identical. ' Before this testimony was admitted, the court heard evidence as to the qualification of the witness to testify as an expert in the art of identifying finger prints. The witness was held to be an expert.

Upon all the evidence submitted to the jury, there was a verdict of guilty. On this verdict, it was adjudged by the court that the defendants be imprisoned in the State’s Prison for terms of not less than two nor more than three years, at hard labor, as punishments, respectively, for the felonies charged in each indictment, the terms, however, to be concurrent.

From this judgment defendants appealed to the Supreme Court.

*Attorney-General Brummitt and Assistant Attorney-General Nash for the*State,.

*PL. 0. Wottz and B,. A. Freeman for defendants.*

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.” *675In 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.

*676Tbis 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.