People v. Ware

163 N.W.2d 250, 12 Mich. App. 512, 1968 Mich. App. LEXIS 1222

Opinions

Burns, J.

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

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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 ALR 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, 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, 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:

“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 CL 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; People v. Chivas (1948), 322 Mich 384. 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.

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, and People v. Zesk (1944), 309 Mich 129.

Reversed and remanded for a new trial.

Holbrook, J., concurred with Burns, P. J.

CL 1948, § 750.110, as amended by PA 1064, No 133 (Stat Ann 1968 Cum Supp § 28.305).