Summary
holding that evidence consisting solely of fingerprint on a pinball machine's money box was insufficient to sustain conviction when machine was located in a public place and was generally accessible, and it was not shown where on the machine the money box was located, such that the print could have been left on the machine at some time other than the commission of the crime, i.e., the print could have been left during innocent play
Summary of this case from Jones v. StateOpinion
33804.
DECIDED DECEMBER 5, 1951.
Burglary; from Spalding Superior Court — Judge Byars. August 11, 1951.
Leward Hightower, Guy R. Dunn, for plaintiff in error.
John J. Flynt Jr., Solicitor-General, contra.
To warrant a conviction on the sole evidence that fingerprints corresponding to those of the accused were found at the place where the crime was committed, the evidence must be sufficient to exclude every reasonable hypothesis save that the fingerprints were impressed at the time the crime was committed.
DECIDED DECEMBER 5, 1951.
Weldon Anthony was indicted, tried, and convicted, in the Superior Court of Spalding County, of burglary. The corpus delicti was proved by a witness for the State, who testified that his place of business was broken into between 10 p. m. April 23, and 9 a. m., April 24, 1951, the hasp torn off the door, the bottom sash and glass of a kitchen window broken out, and several articles of merchandise missing, of a value of approximately $73, plus money in the amount of between $15 and $28, located in an eight by twelve inch metal container in a pinball machine, and also in the music box. A witness, qualifying as an expert, introduced in evidence two fingerprints, one lifted from the money box of the pinball machine and the other from the money box of the music machine. As to the first, there was testimony identifying it as being a print of the middle finger of the left hand and as being identical with a fingerprint of the third finger of the left hand of Weldon Anthony, as shown by a card in the police files of the City of Griffin made during a previous investigation. One witness testified that he knew that the Weldon Anthony on trial had formerly lived in Griffin and had moved to Atlanta, but no witness could identify him as the same Weldon Anthony who had been previously brought in for investigation and fingerprinted by the police department. Objection to the documentary evidence concerning fingerprints was made on the ground that it had not been proved that the Weldon Anthony on trial was the same person who had been previously fingerprinted, which objection was overruled. The defendant in his statement contended that he had not been in Griffin on the night in question, but had been at home playing a card game, which statement was corroborated by the testimony of three witnesses, including the defendant's sister-in-law, who lived in the same house.
Upon conviction the defendant filed a motion for a new trial on the general grounds only, which motion was overruled, and this judgment is assigned as error.
Since error is not assigned on the admission into evidence of the fingerprint reproductions it will not be considered here, although, on the subject of similarity of name being prima facie evidence of identity, see Vann v. State, 72 Ga. App. 301 ( 33 S.E.2d 742); Mills v. State, 71 Ga. App. 353 (4) ( 30 S.E.2d 824).
As stated in Moon v. State, 22 Ariz. 418 ( 198 P. 288, 16 A.L.R. 362), "It seems well settled both in England and in this country that evidence of correspondence of fingerprint impressions for the purpose of identification, when introduced by qualified fingerprint experts, is admissible in criminal cases, the weight and value of such testimony being a question for the jury." See also People v. Jennings, 252 Ill. 534 ( 96 N.E. 1077, 43 L.R.A. (N.S.) 1206); State v. Cerciello, 86 N.J.L. 309 ( 90 A. 1112); People v. Roach, 215 N.Y. 602 (109 N.E.. 618); State v. Connors, 87 N. J. L. 419 ( 94 A. 812). "To warrant a conviction, however, the fingerprints corresponding to those of the accused must have been found in the place where the crime was committed, under such circumstances that they could only have been impressed at the time when the crime was committed." 16 A.L.R. (Note), 370. The mere finding of the defendant's fingerprints on a window which has been broken to gain access to the house, when there are other fingerprints on the window, and where those in question could have been lawfully made by the defendant, the window being so situated as to make it accessible to the public generally, is not sufficient to form the basis of conviction.
Here it is not shown whether or not there were other fingerprints than those of the defendant on the money box of the pinball machine. There is no testimony as to exactly where the money box is located on the machine. It is not shown whether the fingerprints were on the inside or the outside of the money box. From the evidence, therefore, we are unable to determine whether this fingerprint could only have been impressed at the time the crime was committed. The pinball machine was located in a place of business where the public are invited. It is common knowledge that the operation of a pinball machine in a public cafe or place of business contemplates its accessibility to the public generally. Also, when such machine is being played by members of the public their hands will be placed on it. If the money box was so located that the hand of a person playing the machine would likely be placed on it, and if this fingerprint was on the outside of the money box, it could have been impressed thereon at a time other than when the crime was committed.
The defendant in his statement denied committing the crime and sought to establish an alibi. The evidence is silent as to whether the defendant had, at some time or other prior to the commission of the crime, played the machine. It follows, therefore, that while the evidence is sufficient prima facie to establish that the fingerprint found on the money box of the pinball machine was that of the defendant (see Vann, v. State, supra; Mills v. State, supra), yet it is not sufficient to show that the fingerprint "could only have been impressed at the time when the crime was committed." The fingerprint found on the money box of the music machine is not identified as that of the defendant. The State in this case relies for conviction entirely upon circumstantial evidence, which is not sufficient to exclude every reasonable hypothesis save that of the guilt of the accused. The fingerprint relied upon is not used in corroboration of any other evidence against the defendant, but constitutes all of the evidence against him.
The trial court erred in overruling the motion for a new trial.
Judgment reversed. MacIntyre, P. J., and Gardner, J., concur.