McGarry v. State

• Decision Date: 23 January 1918
• Docket Number: (No. 4753.)
• Citation: 200 S.W. 527
• Parties: McGARRY v. STATE.
• Court: Texas Court of Criminal Appeals

200 S.W. 527

McGARRY v. STATE.

(No. 4753.)

Court of Criminal Appeals of Texas.

January 23, 1918.

Appeal from District Court, Milam County; John Watson, Judge.

B. J. McGarry was convicted of burglary, and he appeals. Judgment reversed, and cause remanded.

Robt. M. Lyles and U. S. Hearrell, both of Cameron, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.

MORROW, J.

Appeal is from a conviction for burglary. The depot office at Rockdale was burglarized on the 28th of November; entry having been made by breaking a window glass from the outside and unfastening the door from the inside. The safe was opened and some forty-odd dollars withdrawn. The appellant was a stranger in the community; was shown to have been in the town of Rockdale on the day before and the day after the burglary. He left a package in a store on the day before the burglary and called for it the following day. It contained some papers which were subsequently introduced in evidence, which papers were letters written certifying that J. J. Wilson was a deaf-mute, and other memoranda. He registered at a hotel, signing the register "J. J. Wilson," claiming to be a mute. The burglary took place about between 6 and 7 o'clock in the evening. There was evidence that appellant and two other persons with him went on the train from Rockdale to Cameron, a short distance, on the night of the burglary after it occurred, and that appellant returned to Rockdale on a train the morning following and was arrested when he started to leave on the train the same day. He changed a $10 bill at Cameron, but there was no evidence identifying it with the money stolen. He was found in possession of none of the stolen property. The evidence mentioned was practically all that was contained in the record, except that there was evidence that upon one of the window panes of the window that was broken there were finger prints which were identified by expert testimony as identical with finger prints made by appellant on a piece of paper after his arrest. The evidence showed that there were other finger prints upon the window pane, and it was not practicable to tell when and by whom these were made and when those claimed to have been made by appellant were placed upon the window. The window was situated so as to make it accessible to the general public, at a public place, and we regard the evidence insufficient to support the verdict. The fact that appellant was in the town at the time of the burglary and that he made finger prints upon the window is not inconsistent with his innocence, nor does it, with the other testimony, fulfill the legal measure of circumstantial evidence.

The contention that there was error in the proof that appellant registered under the name of J. J. Wilson, and claimed to be a mute, we think, is not sound. It was introduced in connection with his identity as having been in the vicinity of the scene of the crime at the time in question, and does not, we think, come within the purview of the law which prohibits the state to attack the character of the accused. Such color as it threw upon his character was legitimately incidental to, and res gestæ of, his identification at the time and place mentioned.

The proposition that there was error in permitting the state to prove that appellant after his arrest made finger prints upon a paper was violative of the Bill of Rights (section 10), providing that an accused was not to be required to give evidence against himself, is, we think, untenable. The point in principle, we think, is decided against appellant in the opinion of this court in Pitts v. State, 60 Tex. Cr. R. 525, 132 S. W. 801, wherein it was held, Judge Ramsey writing the opinion, that evidence of footprints made under a similar circumstance was not to be rejected, and in which he reviewed various decisions to this effect, beginning with Walker v. State, 7 Tex. App. 245, 32 Am. Rep. 595. These authorities and others will be found collated in Harris' Constitution, Ann., p. 95, note 86.

The documents found in the book or wallet belonging to appellant, which constituted certificates that J. J. Wilson was a deaf-mute and worthy of assistance, and data connected therewith, we think, were improperly received in evidence.

The part of the window on which there were finger prints and the paper upon which appellant had made finger prints were taken to an expert, who testified in detail as to his study of and inquiry into the subject of finger prints as a means of identification. He claimed to have been engaged in that character of work for ten years, and to have made a close study of it in various places, and to be able by comparison of enlarged photographs of finger prints to determine questions of identity, claiming that it furnished an accurate means thereof; that he was skilled in the photographic process necessary to enlarge and develop them; and that a comparison of some of the finger prints upon the window and those on the paper, which were admittedly made by the appellant, showed that they were made by the same person. This testimony was objected to upon various grounds. No precedents in this state have been cited or found touching the admissibility of this character of testimony. The Supreme Court of Illinois, in the case of People v. Jennings, 252 Ill. 534, 96 N. E. 1081, 43 L. R. A. (N. S.) 1206, considered the subject, and in view of its novelty in this state we reproduce the statement of conclusions reached by that court, omitting the evidence showing the qualification of the witnesses, with the remark that the witness who testified in the instant case gave testimony showing his knowledge of the subject quite as fully as that detailed by the witnesses in the case mentioned, from which case we quote as follows:

"It is further insisted in this connection by plaintiff in error that the evidence of Halsted, Mrs. McNabb, and Miss McNabb was inadmissible because of the uncertain character of the identification. A great deal has been written and said in the past concerning the doubtful nature of testimony identifying persons. Men's faces, like their handwriting, may be so similar that the keenest observer may be baffled in seeking to discover differences. `The witness,' says Wharton, `is asked how he knows that the prisoner at the bar is the person who fired the fatal shot, and his answer is, "I infer it from a similarity of eyes, of hair, of height, of manner, of expression, of dress." Human identity, therefore, is an inference drawn from a series of facts, some of them veiled, it may be, by disguise and all of them more or less varied by circumstances.' Wharton on Crim. Evidence (8th Ed.) § 13. In his charge to the jury in the Tichborne case Lord Cockburn said: `Frequently a man is sworn to who has been seen only for a moment. A man stops you on the road, puts a pistol to your head, and robs you of your watch or purse: a man seizes you by the throat, and while you are half strangled his confederate rifles your pockets; a burglar invades your house by night, and you have only a rapid glance to enable you to know his...