State v. Pryor

• Decision Date: 20 January 1975
• Docket Number: No. 55187,55187
• Citation: 306 So.2d 675
• Parties: STATE of Louisiana, Appellee, v. Daniel PRYOR, Jr., Appellant.
• Court: Louisiana Supreme Court

Page 675

306 So.2d 675

STATE of Louisiana, Appellee, v. Daniel PRYOR, Jr., Appellant.

No. 55187.

Supreme Court of Louisiana.

Jan. 20, 1975.

J. Edgerton Pierson, Jr., Blanchard, Walker, O'Quin & Roberts, Shreveport, for appellant.

William J. Guste, Jr., Atty. Gen., Barbara Rutledge, Asst. Atty. Gen., John A. Richardson, Dist. Atty., Paul J. Carmouche, Asst. Dist. Atty., for appellee.

TATE, Justice.

The defendant was convicted of simple burglary, La.R.S. 14:62, and sentenced to 7 1/2 years at hard labor. The single error urged upon his appeal concerns the denial of his motion for a directed verdict of not guilty.

La.C.Cr.P. art. 778 provides: 'In a jury trial the court may direct a verdict of not guilty of one or more of the offenses charged, on its own motion or on that of a defendant, after the close of the state's evidence or of all of the evidence, if the evidence is insufficient to sustain a conviction. * * *.' The motion should be sustained when no evidence at all has been introduced which proves the crime charged or an essential element of it. State v. Patterson, La., 295 So.2d 792 (1974); State v. Douglas, La., 278 So.2d 485 (1973).

The issue here raised is whether any evidence was introduced to prove that it was the defendant Pryor who committed the unauthorized entry upon which the burglary charge is based.

The burglary of the grocery store was committed during the nighttime hours. In addition to other merchandise, some watches and money were stolen from a small filing cabinet. The only evidence introduced which connects the defendant with this crime is that a latent fingerprint which matched that of one of his fingers was found upon the filing cabinet on the morning after the burglary.

The defendant Pryor contends that, while this fingerprint may prove he touched the filing cabinet at some time in the past, it does not prove that he was the person who made the unauthorized entry and theft on the date in question. Pryor points out that he was a former employee and an occasional customer of the store.

Burglary is 'the Unauthorized entering' of any structure with intent to commit a felony or theft therein. La.R.S. 14:60, 14:62. The proof undeniably shows that someone committed an unauthorized entry for such purpose. But, the defendant contends, it does not show that He did.

In order to negative an authorized entry by reason of which the defendant's fingerprint was found on the filing cabinet, the state relies upon the testimony of the store's proprietor.

The filing cabinet was behind a counter across the rear of the premises. The proprietor testified that no customer was ever permitted behind the counter and that the cabinet was beyond reach of any customer in front of the counter.

The proprietor further testified that, as 'around the time of the burglary', the defendant would have no business to go behind the counter and had never been there to his knowledge and, further, that 'no one is allowed behind that counter'. Tr. 21--22. He also testified that he was always present when the store was open and that he always closed the store when he left, even temporarily.

The state produced no direct evidence of the defendant's commission of the burglary. It relies upon circumstantial evidence: the defendant's fingerprint found on the filing cabinet, and the store proprietor's testimony, which tends to exclude the defendant's authorized entry near the burglarized filing cabinet, at least as of or near the time of the 1974 burglary.

La.R.S. 15:438 provides: 'The rule as to circumstantial evidence is: assuming every fact to be proved that the evidence tends to prove, in order to convict, It must exclude every reasonable hypothesis of innocence'. The issue of whether every reasonable hypothesis of innocence has been excluded presents a question of law. State v. Heymann, 256 La. 18, 235 So.2d 78 (1970); State v. Linkletter and Soldani, 239 La. 1000, 120 So.2d 835 (1960); State v. LaBorde, 234 La. 28, 99 So.2d 11 (1958).

The defendant does not contest the admissibility or reliability of fingerprint evidence as proof of identity. See Annotation, Evidence--Finger, Palm, or Footprint, 28 A.L.R.2d 1115 (1953). See also Moenssens, Moses, and Inbau, Scientific Evidence in Criminal Cases, Section 7.09 (1973) and Wharton's Criminal Evidence, Sections 83 and 192 (13th ed., Torcia ed. 1972).

He forcefully argues, however, that the proof of his fingerprint, standing by itself, does not constitute evidence of His unauthorized burglary, even considered in the light of the proprietor's testimony. He suggests, for instance, that the evidence does not directly exclude, as a reasonable possibility, that the fingerprint had been made when the defendant was employed by the proprietor for four days some five years prior to the burglary. ¹

The defendant relies upon decisions such as: United States v. Collon, 426 F.2d 939 (C.A.6, 1970); Borum v. United States, 127 U.S.App.D.C. 48, 380 F.2d 595 (1967); Cooper v. United States, 94 U.S.App.D.C. 343, 218 F.2d 39 (1954); Solis v. People, Colo., 485 P.2d 903 (1971); Musgrove v. State, 3 Md.App. 54, 237 A.2d 804 (1968); Ivey v. State, 176 So.2d 611 (Fla.App.1965).

The thrust of these decisions is that the accused's fingerprint found at the scene of an unauthorized entry or upon some object connected with the crime is, by itself, not evidence that the accused committed the offense, if the evidence permits a reasonable inference that the fingerprint may have been placed there at another time than the offense. Some of the decisions also cited testimony in the case that the fingerprints there involved may have been on the objects indefinitely.

In all of the cited decisions the conviction was reversed, where the sole evidence of the accused's participation in the crime was a fingerprint. One of the decisions points out that, under the circumstances shown, '* * * to allow this conviction to stand would be to hold that anyone who touches anything which is found later at the scene of a crime may be convicted * * *.' Borum v. United States, at 380 F.2d 597.

An authoritative work on the subject summarizes the jurisprudence on this issue. Moenssens, Fingerprints and the Law 118--25 (1969) (Inbau Law Enforcement Series). The work notes, pp. 118--19: 'To support a conviction based solely or primarily on fingerprint evidence, it must be shown that the defendant's fingerprints were found under such circumstances as to exclude any reasonable possibility of consistency with innocence. If fingerprints of the accused are found at the place where a crime has been committed and in such manner as to exclude every reasonable hypothesis save that the fingerprints were impressed at the time that the crime was committed, then a...