People v. Ware

• Decision Date: 25 July 1968
• Docket Number: No. 1,Docket No. 2499,1
• Citation: 163 N.W.2d 250,12 Mich.App. 512
• Parties: PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Nora Bell WARE, Defendant-Appellant
• Court: Court of Appeal of Michigan — District of US

Page 250

163 N.W.2d 250

12 Mich.App. 512

PEOPLE of the State of Michigan, Plaintiff-Appellee, v. Nora Bell WARE, Defendant-Appellant.

Docket No. 2499.

Court of Appeals of Michigan, Division No. 1.

July 25, 1968.

Released for Publication Jan. 3, 1969.

Chester Kasiborski, Detroit, for appellant.

Frank J. Kelley, Atty. Gen., Robert A. Derengoski, Sol. Gen., Lansing, William L. Cahalan, Pros. Atty., Wayne County, Samuel J. Torina, Chief Appellate Lawyer, Wayne County, Thomas P. Smith, Asst. Pros. Atty., Wayne County, Detroit, for appellee.

Before BURNS, P.J., and HOLBROOK and PETERSON, ^* JJ.

BURNS, Judge.

Defendant was convicted by a jury of the offense of breaking and entering with intent to commit larceny ^**.

Between 3:30 a.m. and 7:00 a.m., June 10, 1965, the 'D' bar located in Detroit was broken into, and money, whiskey and cigarettes were taken. Although entry was also made through the basement door, there was testimony indicating that other entrance doors were broken or partially broken. At 3:00 o'clock on the morning of the crime the owner secured by a hook lock and bolt an outside door leading from an alley into a storage shed which was attached to the rear of the bar. This door had been forced open. There was also evidence of an attempt to break open a second door leading from the shed into the bar's kitchen; a window in that door had been broken. Broken glass from that window had been piled on a beer case in the shed. Early that same morning the owner of the bar moved the pile of glass to the kitchen for police examination. The police and bar personnel were careful not to let anyone touch the glass until the fingerprint officer arrived. The defendant's fingerprint was found on one piece of the glass and constituted the only evidence connecting the defendant to the crime. The owner and operator of the bar in question testified that he had never seen the defendant in his bar.

The defendant claims the evidence is not sufficient to sustain a conviction. The general rule as to what proof is required for a conviction where fingerprints are involved, is set forth in 28 A.L.R.2d 1154:

'To warrant a conviction, 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.'

People v. Harris (1960), 358 Mich. 646, 101 N.W.2d 242, cited by the defendant, is distinguishable because the evidence in that case clearly did not come within the rule enunciated above. In the case of People v. Les (1934), 267 Mich. 648, 255 N.W. 407, the Court held that a palm print of the defendant's right hand found on the rear bedroom windowsill through which the offender gained entrance was sufficient evidence to find probable cause. Notwithstanding the fact that the court was considering proof of probable cause, the Court said on p. 652, 255 N.W. on p. 409:

'The evidence of experts as to the identity of latent and actual palm prints is a proper subject for the consideration of a jury, and the weight to be given such testimony is for the jury to determine.'

The circumstances surrounding the discovery of defendant's fingerprint sufficiently support the jury's verdict of guilty.

Defendant claims the court erred in its charge to the jury by quoting and summarily explaining C.L.1948, § 767.39 (Stat.Ann.1954 Rev. § 28.979) which provides:

'Every person concerned in the commission of an offense, whether he directly commits the act constituting the offense or procures, counsels, aids, or abets in its commission may hereafter be prosecuted, indicted, tried and on conviction shall be punished as if he had directly committed such offense.'

During the course of the trial some witnesses when questioned concerning the breaking and entering used the word, 'they.' The theory of the people was to the effect that the defendant, with others, perpetrated the breaking and entering. However, there was no substantive proof to justify such a theory or the instructions given by the court. A court should refuse to give instructions upon a theory of defense where there is no evidence tending to establish it. People v. Knox (1961), 364 Mich. 620, 111 N.W.2d 828; People v. Chivas (1948), 322 Mich. 384, 34 N.W.2d 22. By virtue of the same reasoning it is reversible error for the court to give instructions upon a theory for the prosecution which is unsupported by the evidence. See People v. Goodrode (1903), 132 Mich. 542, 94 N.W. 14.

The other claimed errors involve the examination of one witness and argument of the prosecutor. The defendant did not object to the questions proposed to the witness nor to the prosecutor's argument. We will not consider them at this time on appeal. See People v. Fedderson (1950), 327 Mich. 213, 41 N.W.2d 527, and People v. Zesk (1944), 309 Mich. 129, 14 N.W.2d 808.

Reversed and remanded for a new trial.

PETERSON, Judge (dissenting).

I agree that the judgment must be vacated, and add that I consider the other errors referred to equally fatal to the conviction notwithstanding the failure of counsel to make timely objection thereto at trial. ^* Because of my view of the fingerprint evidence, however, I would discharge the defendant.

The only competent evidence offered to prove defendant's guilt is a fingerprint, taken from a piece of broken glass, which was proved by comparison to be that of defendant. The glass bore other unidentified fingerprints. It came from a door which was not the point of unlawful entry, although damaged during the same night as the burglary, which was accessible to the public.

The general proposition stated by the annotator in 28 A.L.R.2d pp. 1150 and 1154, is that a fingerprint found at the scene of a crime is sufficient to convict if the circumstances prove the print could only have been impressed at the time the crime was committed. The statement is merely a particularization of the view taken of circumstantial evidence generally,--namely, that it must be such as to exclude every reasonable hypothesis except that of guilt in order to warrant a conviction. See People v. Sessions (1886), 58 Mich. 594, 606, 26 N.W. 291:

'In criminal cases not only must each of the facts from which the inference is drawn be proved beyond any reasonable doubt, but the inference itself must be such as admits of no other rational conclusion.'

The existence of a fingerprint on a given object or in a given place proves only that the person identified by the fingerprint at some time touched the object or was at the particular place. The cases annotated in the A.L.R. reference above deal not alone with the...