State v. Steffen

• Decision Date: 14 April 1930
• Docket Number: No. 39540.,39540.
• Citation: 230 N.W. 536,210 Iowa 196
• Parties: STATE v. STEFFEN.
• Court: Iowa Supreme Court

210 Iowa 196

230 N.W. 536

STATE

v.STEFFEN.

No. 39540.

Supreme Court of Iowa.

April 14, 1930.

Appeal from District Court, Pottawattamie County; O. D. Wheeler, Judge.

The defendant was indicted for the crime of breaking and entering a store building. The jury returned a verdict finding defendant guilty, and, from judgment and sentence pronounced thereon, defendant appeals.

Reversed.

Superseding opinion in 226 N. W. 46.

DE GRAFF, J., MORLING, C. J., and KINDIG, J., dissenting in part.John J. Hess, of Council Bluffs, for appellant.

John Fletcher, Atty. Gen., Neill Garrett, Asst. Atty. Gen., and Frank E. Northup, County Atty., of Marshalltown, for the State.

FAVILLE, J.

One Norsworthy operates a grocery store in the city of Council Bluffs. About 10:30 o'clock on the evening of May 16, 1927, the witness Krouse was passing down an alley in the rear of the Norsworthy store. He noticed that the shutters in the rear of the store were open, and that the glass in the window had been broken. He heard a noise inside the store, and about that time his wife appeared upon the scene and brought a revolver to said witness. Almost immediately thereafter the witness heard the iron bar on the inside of the grocery store lifted and the door was partly opened. The witness shouted: “Come out of there. You are under arrest.” The door was slammed and the bar dropped, whereupon the witness ran to the front of the store. About the same time a case of cookies was thrown through the glass of the front door, and a man crawled through the opening upon the sidewalk in front of the store. The evidence tends to show that the witness Krouse shot the man he saw come through said opening in the front door of this store building. In any event, the man who was shot was the appellant, who was shortly after taken in custody by the police. The appellant contends that he was not in the store building at any time, but was walking past said building when he was shot. There is other evidence tending to corroborate the contention of the state, as well as that of the appellant, but we do not deem it necessary to recite the details thereof for the purposes of the questions presented by this appeal.

I. The owner of the store testified that he arrived at the store shortly after it had been broken into; that some of the pieces of glass that had been broken from the window were gathered up and put in a paper sack, and that he turned these pieces of glass over to a police officer the next morning in the same condition they were in when they were picked up. Said police officer testified to having received said pieces of glass from Norsworthy. He also testified that the morning after the burglary he took some glass from the storm window in the rear of the store and picked up some pieces of glass under the window which had been broken. It appeared that the different pieces of glass fitted together. The evidence was sufficient to support a finding that the pieces of glass that came into the possession of the police officer were the identical pieces of glass that were broken from the window in the rear of the said store.

A finger print expert was a witness in behalf of the state. The impressions of the finger prints of the appellant were taken, and the expert made comparison between these and finger prints which were discovered upon said broken pieces of glass. Photographs of each of these were identified and offered in evidence. On the direct examination of the expert witness, the following took place:

“Q. Now, you may examine Exhibit 4, the glass, your comparison of that print found on that particular glass with the finger print taken from the left index finger of Steffen. I will ask you to state whether or not you are able to say whether or not those two prints, the one on the glass, and the one you took from the finger of Clem Steffen, were both made by the same finger? (Objected to as incompetent, immaterial, and irrelevant, calling for an ultimate fact to be determined by the jury. Overruled. Defendant excepts.) A. They were.

Q. Are you able to state whether they are or not, are you? A. Yes, sir.

Q. What is the fact? (Objected to as incompetent, immaterial and irrelevant, calling for an ultimate fact to be determined by the jury. Overruled. Defendant excepts.) A. They are the same. * * *

Q. From your examination of those prints are you able to state whether the two prints, the two finger prints, found on the glass, exhibit number 5, were made by the same identical fingers as those taken from the corresponding fingers of the defendant, Clem Steffen? A. Yes, sir.

Q. What is the fact about that? (Objected to by defendant as incompetent, immaterial and irrelevant, calling for a matter that the jury should pass on rather than the witness. Overruled. Defendant excepts.) A. They are the same.”

On the examination of another expert witness for the state, the following took place:

“Q. I will ask you to state from the examination you made of them, and the comparison of them, whether or not you are able to state whether the print found on the glass, Exhibit 2, was made by the same finger that made the print which is found to the left on Exhibit 3, the enlarged reproduction; are you able to state if those were made by the same fingers? A. I am.

“Q. What is the fact?

“Mr. Hess: Objected to as asking for the conclusion of the witness on a matter that the jury must determine, rather than the witness. He isn't asking for his opinion. He is asking for a fact. He doesn't know. It is incompetent, immaterial, irrelevant. (Overruled. Defendant excepts.) “A. They were made by one and the same finger.”

The use of finger prints as a means of identification is comparatively recent in this country, although it is of very ancient origin. It was probably discovered by the Chinese. The origin has been traced back to a time nearly a hundred years before the Christian era.

[1] The scientific study of finger prints as a means of identification is called dactylography.

There is an exhaustive and interesting account of the history of the development of the science in the opinion of the Supreme Court of Nevada in the case of State v. Kuhl, 42 Nev. 185, 175 P. 190, 3 A. L. R. 1694. See, also, Enc. Brit. (11th Ed.) vol. x, p. 376.

[2] It is now generally recognized that evidence in respect to the similarity of identity of finger prints is admissible in a proper case. The cases involving finger prints have not been very numerous. They include the following: State v. Kuhl, supra; State v. Cerciello, 86 N. J. Law, 309, 90 A. 1112, 52 L. R. A. (N. S.) 1010;State v. Connors, 87 N. J. Law, 419, 94 A. 812;People v. Jennings, 252 Ill. 534, 96 N. E. 1077, 43 L. R. A. (N. S.) 1206;People v. Roach, 215 N. Y. 602, 109 N. E. 618, Ann. Cas. 1917A, 410;People v. Storrs, 207 N. Y. 147, 100 N. E. 730, 45 L. R. A. (N. S.) 860, Ann. Cas. 1914C, 196; Parker v. Rex, 14 C. L. R. 681, 3 British Ruling cases 68 (Australia); Emperor v. Abdul Hamid, 32 Indian L. Rep. 759 (India); Emperor v. Sahdeo, 3 Nagpur L. Rep. 1 (India); Emperor v. Hulost, 7 Crim. L. J. 406 (India). See, also, 3 Chamberlayne on Modern Law of Evidence, § 2561.

The question at this point is whether or not the court erred in permitting the expert witnesses for the state to testify, over the objections of the appellant, to the ultimate fact that the finger prints on the broken pieces of glass were the finger prints of the appellant. The expert witnesses were permitted to explain in detail the science of dactylography and the manner in which finger prints disclose identification. The jury had the benefit of the scientific knowledge of the experts and a full explanation of the exhibits. Was it proper to permit the experts to testify to the ultimate fact as to whether or not the finger prints found upon the broken pieces of glass were made by the appellant? It is to be noticed that the expert witnesses were not asked to express an opinion on the subject, but the question was as to the ultimate fact of such identity.

It is argued by the state that the questions were not objectionable, and that the expert witnesses, because of the peculiar nature of the science pertaining to finger prints, should be allowed to testify to the ultimate fact of the identity of the finger prints on the broken glass with those of the appellant. Appellee relies upon People v. Jennings, 252 Ill. 534, 96 N. E. 1077, 1083, 43 L. R. A. (N. S.) 1206. In that case, four witnesses testified for the state. Two of the witnesses testified that “in their judgment the finger prints were made by the same party.” One expert testified that she “believed them to have been made by the same person,” and one witness appears to have testified that “the two sets of prints were made by the fingers of the same person.” The court said:

“On questions of identity of persons and of handwriting it is every day's practice for witnesses to swear that they believe the person to be the same or the handwriting to be that of a particular individual, although they will not swear positively, and the degree of credit to be attached to the evidence is a question for the jury.”

The court said:

“While it is usual for expert witnesses to testify that they believe or think, or in their best judgment, that such and such a thing is true, no rule of law prevents them from testifying positively on such subjects. It is for the jury to determine the weight to be given to their testimony.”

The appellee also relies upon State v. Kuhl, 42 Nev. 185, 175 P. 190, 196, 36 A. L. R. 1694. In that case, the court said:

“Error is assigned to the ruling of the trial court in permitting the witness Stone to make a positive statement as to the identity of the palm impressions. In this respect he testified positively that these palm prints were made by one and the same hand. We might with propriety pass this assignment without comment, for the reason that the only ground of objection assigned in the trial court was that the...