Davis v. State
66 S.W.2d 343
Tex. Crim. App.
1933
Check Treatment
MORROW, Presiding Judge.

The offense is burglary; penalty assessed at confinement ‍​‌​​​​​‌‌​​‌​​​‌‌​​​​​​‌‌‌‌​‌​‌​‌‌​​​​‌​​‌​‌​‌‌‌‍in the penitentiary for twо years.;

The store of A. J. Hudson was burglarized on the night of August- 13, 1932, and a quantity of merchandise was stolen therefrom. The witness Martin testified that about twenty days later, he observed three parties, one of whom was the appellant, at or near a spring in Floyd County, Texas, where two, automobiles were parked. According to the witness, the situar tion of the cars and the parties indicated that they were endeavoring ‍​‌​​​​​‌‌​​‌​​​‌‌​​​​​​‌‌‌‌​‌​‌​‌‌​​​​‌​​‌​‌​‌‌‌‍to screen themselves from the view of the public. Later, the sheriff of Briscoе County came upon the cars mentioned, whereupon the persons prеsent fled. One of them named Stinson was captured but the other two escaped. The sheriff was unable to identify the appellant as one of the parties who had escaped. In the automobile .which was abandoned a part of thе stolen property mentioned was found. In October fol *7 lowing the discovery made on September 2nd, the witness Martin and the sheriff went to Mineola, Arkansas, and there Martin identified the appellant as one of the persons whom he had seen at the automobile in September. There was evidence that finger-prints had beеn taken in the store from which the property was taken. One finger-print was in a drawеr containing some dry goods, another was on a bottle and another was on a shoe box. The finger-print of the appellant was ‍​‌​​​​​‌‌​​‌​​​‌‌​​​​​​‌‌‌‌​‌​‌​‌‌​​​​‌​​‌​‌​‌‌‌‍subsequently taken, and according to an expert witness on the subject of finger-prints, the print upon the drawer mentioned was identified as corresponding with that of the appellant. The other two finger-prints which were found in the building were not identified. The appellant had. lived in the vicinity but had moved and at the time of the burglary was a resident of the State of Arkansas. Appellant introduced testimony sufficient, if believed, to establish an alibi.

The views оf this court and others, .expressed ‍​‌​​​​​‌‌​​‌​​​‌‌​​​​​​‌‌‌‌​‌​‌​‌‌​​​​‌​​‌​‌​‌‌‌‍in the cases of Graves v. State, 43 S. W. (2d) 953, McGarry v. State, 82 Texas Crim. Rep., 597, Weathered v. State, 46 S. W. (2d) 701, are to thе effect that finger-prints, while admissible, are not conclusive as to the identity of аn individual. In the present instance, the finger-prints are but one of the circumstancеs available to the jury in reaching the conclusion as to whether the circumstances are such as to meet the measure demanded by the law in a casе depending entirely upon circumstantial evidence. In the present case, note is to be taken of the following additional facts: The burglary took plaсe on August 13, 1932. The first testimony affecting the appellant is that some twenty days after the burglary, he and other parties were at or near a spring in' Floyd County. In October fоllowing, the appellant was seen in Arkansas, of which state he was a citizen. In сonsidering the application of the law of circumstantial evidence, the ‍​‌​​​​​‌‌​​‌​​​‌‌​​​​​​‌‌‌‌​‌​‌​‌‌​​​​‌​​‌​‌​‌‌‌‍identification of the appellant as having been seen with the two parties at the place where there were two automobiles some twenty days after the burglary was committed, is not regarded as a circumstance of sufficient cogency to connect him with the burglary committed some twenty days prior theretо. Appellant was not at that time shown to have been in possession of any of the stolen property. The evidence goes no further than to show that two other parties were near the automobile. Presumably they were the same рarties who were seen near the automobile at the time part of the stolen goods was found. However, the appellant was not identified as one оf those present at that time. None of the stolen property was found in possession of the appellant. In view of the record and the alibi established, thе *8 state’s attorney before this court has indicated that the evidence is not rеgarded by him as sufficient to meet the measure of the law demanded in a conviсtion upon circumstantial evidence. In such conclusion we are constrained to concur.

The judgment is reversed and the cause remanded.

Reversed and remanded.