Summary
In McLain, this Court reversed and rendered a defendant's conviction for grand larceny of an automobile, where the only evidence presented was a thumbprint of the defendant found on the vehicle's rear-view mirror by authorities after recovering the stolen vehicle.
Summary of this case from Ragland v. StateOpinion
No. 35970.
December 10, 1945.
1. CRIMINAL LAW.
Superintendent of Identification of Police Department, who was a graduate of a recognized finger-print school, had 12 years practical experience, and was an officer of an international association for identification, was qualified as a finger-print expert.
2. CRIMINAL LAW.
Finger prints are admissible in order to establish identity of a party where the comparison of a developed finger print with that of the party alleged to have made it is shown.
3. LARCENY.
In prosecution for larceny of an automobile, proof that defendant's thumb print was found on rear-view mirror of automobile when automobile was recovered, although establishing fact that defendant had been in automobile, in absence of other proof, was not sufficient to establish defendant's guilt of offense charged.
4. LARCENY.
Evidence was insufficient to sustain conviction of grand larceny of an automobile.
APPEAL from the circuit court of Coahoma county, HON.E.H. GREEN, Judge.
J.H. O'Neal, of Clarksdale, for appellant.
The appellant was indicted by the grand jury at the June 1945 term of the circuit court of Coahoma County, Mississippi, which indictment charged him with stealing one black Ford coach automobile, the personal property of C.O. Coker, Jr. The court had no right to permit the district attorney to amend the indictment by inserting the word "green" for the word "black," and the name "G.O. Coker, Jr.," for the name "C.O. Coker, Jr." The record discloses that without any showing whatsoever and just on a statement or motion of the district attorney and without any proof whatsoever and without any showing whatsoever and over the objections of the appellant the court permitted the amendment which the appellant says is a fatal error. No showing was made as to the kind or color of car, no showing was made by the district attorney at this time as to whether it was C.O. Coker or G.O. Coker, Jr., but upon the statement of the district attorney the court allowed the amendment to be made. It is true amendments may be allowed but there is certain procedure and certain statutes laid down whereby an amendment to an indictment may be made, but the courts have always held that before an indictment can be amended there must be some showing or some grounds for same and not merely a statement from the district attorney at the beginning of the trial.
The finger-print impressions were insufficient to support the convictions.
Moon v. State (Ariz.), 198 P. 288, 16 A.L.R. 362; Cooper v. State, 86 Ala. 610; Garry v. State, 82 Tex.Crim. Rep., 200 S.W. 527; Code of 1942, Secs. 2610, 2611.
It was error to permit the expert to make the demonstrations and tests before the jury to bolster up and add to the weight of his testimony.
Burke v. People, 148 Ill. 70, 35 N.E. 376; State v. Sanders, 68 Mo. 202, 30 Am. Rep. 782.
There was no substantial evidence to support the verdict and judgment.
Davis v. State, 193 P. 745; State v. Gray, 23 Nev. 301, 46 P. 801; People v. Stevens, 68 Cal. 113, 8 P. 712.
Greek L. Rice, Attorney General, by Geo. H. Ethridge, Assistant Attorney General, for appellee.
The application for inspection of the finger prints in the possession of the officer and to permit a finger-print expert, who had expert knowledge upon the subject, to examine them is without any merit or force because no finger-print expert was produced to make the inspection if one had been permitted, and the district attorney's statement that they were willing at all times for the photographs to be inspected by the appellant or his attorney is not denied. No expert was produced on the motion for a new trial as should have been done if there was in fact a difference in the finger prints visible to expert knowledge only. Reasonable diligence required that the appellant produce his expert at the headquarters of the police department so that the photographs of the finger prints could be viewed witout removing them from the custody of the police department. Had this been done appellant would have been entitled to such inspection by such expert; but it was not permissible nor could the trial court send these official records of the city of Clarksdale outside the State of Mississippi because the records might have become lost or destroyed without remedy.
Code of 1942, Sec. 1659.
The constitutional provision that the defendant cannot be compelled to give evidence against himself is not violated by the introduction in evidence of photographs of finger-print impressions which the defendant voluntarily suffered to be taken.
Moon v. State (Ariz.), 198 P. 288, 16 A.L.R. 362, and case note p. 371; McCarry v. State, 82 Tex.Crim. Rep., 200 S.W. 527.
An indictment or information shall not be abated by reason of any misnomer of dilatory plea, but, in such case, the court shall cause the same to be amended according to the proof and shall proceed as though such plea had not been pleaded; and an indictment shall not be held insufficient for want of, or imperfection in, the addition of any defendant.
McGuire v. State, 35 Miss. 366, 72 Am. Dec. 124; Miller v. State, 53 Miss. 403; Crosby v. State, 191 Miss. 173, 2 So.2d 813; Rutherford v. State, 196 Miss. 321, 17 So.2d 803; Wade v. State, 175 Miss. 434, 167 So. 617; Johnson v. State, 186 Miss. 405, 191 So. 127; Rainwater v. State, 155 Miss. 684, 124 So. 801; Moran v. State, 160 Miss. 598, 135 So. 209; Davis v. State, 165 Miss. 693, 146 So. 598; Robinson v. State, 180 Miss. 774, 178 So. 588; Harvey v. State, 188 Miss. 428, 194 So. 925; Code of 1942, Secs. 2448, 2532; 27 Am. Jur. 675-677, Secs. 115-117.
Argued orally by J.H. O'Neal, for appellant, and by Geo. H. Ethridge, for appellee.
On the night of July 1, 1944, G.O. Coker, Jr., drove his automobile to Clarksdale, and parked it beside a cafe, leaving the keys in it. He went into the cafe, where he remained about thirty minutes. On his return the car was gone. On the following Monday night it was recovered near a gin in Clarksdale. A few days before the disappearance of the car Mr. Coker had had the oil changed, and on recovery of the car and comparison of the mileage shown by the speedometer then with the mileage in the sticker pasted on the car when the oil was changed, the car had been driven, exclusive of about three miles the owner had driven it, about 692 miles.
A few days after recovery of the car the Superintendent of Identification of the Police Department of the City of Clarksdale processed the car for finger prints. It was shown that he was a graduate of a recognized finger-print school, had twelve years practical experience, and was an officer of an international association for identification. He was fully qualified as a finger-print expert.
It does not appear from the record how many finger prints he found in the car, but he produced in court the print of the thumb of appellant, taken from the rear-view mirror. It was determined to be the thumb print of appellant, because about a month after the theft of the car, upon the occasion of the arrest of appellant and his arraignment in police court on a minor misdemeanor charge, an impression of appellant's thumb was made while he was in custody.
In March, 1945, the thumb print was developed and enlarged by photographs. The enlarged pictures of the print from the car, and the one taken while appellant was under a misdemeanor charge, are before us. The thumb print established conclusively that appellant had been in this car; but when, and under what circumstances, it was placed on the rear-view mirror, is not revealed by the mere presence of the print, nor is it definite, of itself, of the specific crime of larceny of the car, since it would be equally as potent as evidence on a charge of trespass or of receiving the car as stolen property.
The use of scientific aids in the direction of crime has expanded and progressed tremendously all over the world. Peace officers and the courts have come to rely with confidence on the aid of technicians — the use of moulages in preserving and identifying footprints and tire treads, ballistics in tracing pistol and rifle balls to the gun from which they were fired. But of all the scientific aids the science of identification of people by the use of finger prints has become generally of the greatest value. A finger print has been called an unforgeable signature. We desire to declare here our confidence in finger prints as an aid in crime detection. It has been recognized for a long time by the courts, including our Court, "as admissible in evidence in order to establish the identity of a party where the comparison of a developed finger print with that of the party alleged to have made it is shown." Willoughby v. State, 154 Miss. 653, 122 So. 757, 759, 63 A.L.R. 1319. The use of finger-print evidence is discussed in our jurisprudence in one other published case, Brown v. State, 173 Miss. 542, 158 So. 339, 161 So. 465. In both of these cases, however, the finger prints were aided by other evidence in the proof of the guilt of defendants, and the identification of the particular crimes charged. In the case before us here the sole and only proof against appellant consists of a thumb-print on the rear-view mirror, wihch is conclusive evidence of his identity, and that he had been in the car for some purpose; but evidence of identity and of presence alone is not equivalent to evidence of guilt of a particular crime, especially where several crimes could have been committed as to this car, but as to which a certain charge was made. The thumb-print here was not declaratory, as stated supra, of the nature of the crime, since it was not aided by other evidence identifying the particular crime, and did not exclude other crimes.
No witness testified to having seen appellant in Clarksdale on the night the car was stolen, or on the day it was recovered; and, as stated, there is no evidence in the record of any kind as to when, or under what circumstances, this print was made on the rear-view mirror.
It is, therefore, our judgment that thumb print alone was not sufficient to establish the specific and definite crime of grand larceny, under the circumstances of this particular case. Therefore, the judgment of the trial court will be reversed, and appellant discharged.
Reversed and appellant discharged.