State v. Helms

• Decision Date: 11 December 1940
• Docket Number: 577.
• Citation: 12 S.E.2d 243,218 N.C. 592
• Parties: STATE v. HELMS.
• Court: North Carolina Supreme Court

12 S.E.2d 243

218 N.C. 592

STATE v. HELMS.

No. 577.

Supreme Court of North Carolina

December 11, 1940

Criminal action tried upon an indictment charging the defendant with feloniously breaking and entering a dwelling house with intent to commit a felony therein, and with larceny of a metal lock box and contents of the value of more than $20 the property of D. L. Middleton.

Upon the trial below the State offered evidence tending to show facts pertinent to this appeal substantially these: At intervals between April 27 and May 31, 1940, defendant had done some painting on the inside of the dwelling house of D L. Middleton in Monroe, North Carolina. Later, at some time between June 4, and June 7, 1940, while D. L. Middleton and his wife were away, the dwelling house was broken into--entry being effected through a window on the back porch, and the metal lock box of D. L. Middleton, in which there were $200 in money and valuable papers, was stolen. When Mrs Middleton, on returning in the late afternoon of June 7 discovered that the house had been entered in her absence, she called the police and then a finger print expert was summoned. From the window on the back porch where the entry had been effected the expert lifted and developed a negative and made prints therefrom of the little finger of a right hand. Later he took fingerprints of defendant, and developed a negative and made prints therefrom of the little finger of defendant's right hand. On the trial the witness identified these prints and same were introduced in evidence by the State without objection. The witness was then asked this question: "Q. I wish you would take these prints and point out one by one, beginning with No. 1, which is the top of the print, the whorl, begin there and point out to the jury the peculiar characteristics and the comparison between the two points?" Objection by defendant overruled; the court holding that fingerprint evidence is substantive evidence, permitted it to be introduced as such, to which defendant excepted. Then after pointing out characteristic marks of similarity, the witness testified that in his opinion the two prints are identical.

The State introduced other evidence of circumstances which it contends tend to show the guilt of defendant.

On the other hand the defendant offered evidence of his good character, and testified that he did not break into the dwelling nor steal the metal lock box, and that while painting in the house he had occasion to open the window from which the expert took the finger prints, and contends that if the fingerprint taken were his, the same must have been made when he opened the window while painting.

In answer thereto, the State offered evidence tending to show that after the painting was done the windows were washed on both the inside and the outside.

The record shows that, "Counsel for defendant objects to the argument of the Solicitor to the jury to the effect that the wife of the defendant did not go upon the stand as a witness for defendant. The court is not present at the time and the Solicitor says that he will argue the point in spite of the objection of the defendant. At the close of all the arguments and after the court had returned to his seat the objection was brought to the attention of the court, at which time the court sustained the objection". Exception. The record further shows that the court then proceeded to give his charge to the jury, and, just before concluding, stated: "Now, gentlemen, the court was sitting out in the room there while the arguments were going on where I could get a breath of fresh air, and I understood that during the argument the counsel for the defendant objected to an argument made by one or both of the counsel for the State that the defendant had failed to put his wife on the witness stand as a witness in his behalf to prove some fact, whatever it may have been, if material to his case. This, gentlemen, was an inadvertence on the part of counsel for the State. It has always been the law in this State that counsel cannot comment upon the failure of the defendant to go on the stand and testify in his own behalf and in recent months the Supreme Court has held that the same rule applies to a defendant's wife because a man and his wife at common law are considered one and the same person and their relationship is such that the law doesn't permit any comment to be made. That was an inadvertence on the part of counsel for the State and you will not let that argument influence you one way or the other".

Motions of defendant for judgment as in case of nonsuit at the close of the State's evidence, and again at the close of all the evidence, were overruled. Defendant excepted in each instance.

Verdict: Guilty as charged in the bill of indictment.

Judgment: On the count charging breaking and entering, imprisonment and to be worked on public highways. On the count charging larceny, prayer for judgment continued during good behavior --the court reserving the right to pronounce judgment at any subsequent term.

Defendant appeals to Supreme Court, and assigns error.

Coble Funderburk, of Monroe, for appellant.

Harry McMullan, Atty. Gen., and T. W. Bruton and Geo. B. Patton, Asst. Attys. Gen., for the State.

WINBORNE Justice.

The defendant presses for error in the main these three assignments: (1) The admission of expert testimony as to fingerprints as substantive evidence; (2) The refusal of the court to grant the motions for judgment as in case of nonsuit; and (3) "The argument of the Solicitor to the jury to the effect that the wife of this defendant did not go upon the stand as a witness for defendant". We are of opinion that the first two assignments are not tenable, but that on the facts of this record the third is well taken.

1. Regarding the first and second assignments. It is well established that evidence of the correspondence of fingerprints, when given by a fingerprint expert, is admissible to prove identity. 20 Am.Jur. 329, Evidence Sec. 357; 16 C.J. 755, Criminal Law, Sections 1550-1552, 23 C.J.S., Criminal Law, §§ 876, 877, 887; State v. Combs, 200 N.C. 671, 158 S.E. 252; State v. Huffman, 209 N.C. 10, 182 S.E. 705. See also Annotations 16 A.L.R. 370, 63 A.L.R. 1324.

In State v. Huffman, supra [209 N.C. 10, 182 S.E. 707], this court said: "The testimony of the fingerprint expert was competent as evidence tending to show that defendant was present when the crime was committed and that he at least participated in its commission", citing State v. Combs, supra.

Evidence of fingerprint...