Thе defendant presses for error in the main these three assignments: (1) The admission of expert testimony as to fingerprints as substantive evidence; (2) the refusal of the court to grant the motions for judgment as in case of nonsuit; and (3) “the argument оf *595 tbe solicitor to the jury to the effect that the wife of this defendant did not go upon the stand as a witness for defendаnt.” We are of opinion that the first two assignments are not tenable, but that on the facts of this record the third is well takеn.
1. Regarding the first and second assignments. It is well established that evidence of the correspondence of fingerрrints, when given by a fingerprint expert, is admissible to prove identity.
In S. v. Huffman, supra, this Court said: “The testimony of the fingerprint expert was competent as evidence tending to show that defendant was present when the crime was committed and that he at least participated in its commission,” citing S. v. Combs, supra.
Evidence of fingerprint identification, that is, proof of fingerprints corresponding to those of the accused, found in a plаce where the crime was committed under such circumstances that they could only have been impressed аt the time when the crime was committed, may be sufficient to support a conviction in a criminal prosecutiоn. 20 Am. Jur., pp. 329 and 1076, Evidence, secs. 357 and 1223.
Applying these principles to the evidence shown on the record on this аppeal, we are of opinion that the evidence of fingerprint identification was properly admittеd, and is sufficient to take the case to the jury. Whether or not all the evidence is sufficient to establish beyond a reasonable doubt that the fingerprints found on the window at the place of the crime correspond with those of the defendant, and, if so, that under the circumstances of the case, as the jury find them to be, the fingerprints so found cоuld only have been impressed on the window at the time when the crime was committed, is a matter for the jury.
2. As to the third assignmеnt: The Legislature has provided by statute, C. S., 1802, that: “The husband or wife of the defendant, in all criminal actions or procеedings, shall be a competent witness for the defendant, but the failure of such witness to be examined shall not be used tо the prejudice of the defense. . . .
The latter part of the quoted portion of the statute has been the subjеct of discussion by this Court in the case of
S. v. Cox,
In S. v. Cox, supra, the State called the wife of defendant, who was under subposna, and tendеred her to defendant for examination. The court ruled that she could only testify for defendant. Then the solicitor, *596 in bis argument to tbe jury, commented on tbe failure of tbe defendant to corroborate bis testimony by bis wife. Defendant objected. Speaking to tbe question, tbe Court said: “Tbe tender of tbe wife by tbe State and tbe remarks of tbe solicitor sharply called attention to tbe failure of tbe defense to examine tbe defendant’s wife. Objection was made, but tbe court, instead of telling tbe jury that they should not let that fact prejudice tbe defendant, on both occasions rather accentuated tbe matter by telling tbe jury that tbe State could not use tbe wife of tbe defendant as a witness, but that be could. Tbe effect, though unintentional on tbe part of bis Honor, was to throw tbe fault of tbe wife not being a witness upon tbe defendant, since be could have put her on and tbe State could not. There was no caution thаt such failure to use tbe wife as a witness should not be considered by tbe jury. Yet tbe tender, and tbe remarks of counsel bеing called to tbe judge’s attention, called for such caution, and bis failing to give it was prejudicial.”
In
S. v. Spivey, supra,
tbe Court, after sеtting out in full tbe matters pertaining to tbe incident to which tbe exception related, said: “There was a similar incident in
S. v. Cox,
In S. v. Harris, supra, upon objection to question tending to show that tbe wife of defendant bad been subpoenaed by defendant and dischargеd as bis witness, tbe court below ruled out tbe question and read tbe statute to tbe jury. (C. S., sec. 1802, quoted above.) On appеal, this Court held that tbe caution was sufficient to cure any prejudicial effect.
In S. v. Watson, supra, tbe solicitor having commentеd upon tbe failure of tbe defendant to call bis wife as a witness in bis behalf, objection to which was overruled by tbe сourt, it is held that tbe argument of tbe solicitor runs counter to tbe prohibitory provisions of tbe statute, C. S., 1802, as appliеd in S. v. Cox, supra, and is prejudicial error.
In tbe present case, though unintentional no doubt, and in tbe beat of debate, the argument of tbe solicitor, as tbе record shows, was made and persisted in after objection by counsel for defendant. It runs counter to tbe prоhibitory provisions of tbe statute, C. S., 1802, and is prejudicial to defendant. When brought to tbe attention of tbe court, it callеd for prompt, peremptory and certain caution to tbe jury, not only that tbe jury should disregard tbe argument but that tbe fаilure of tbe wife of defendant to be examined as a witness in bis behalf should not be used to tbe prejudice of defеndant. Even then, it may be fairly *597 doubted tbat the harmful effects of such argument could have been dispelled from the minds of the jury.
We are of opinion, and hold, that merely sustaining the objection is not sufficient caution. Nor does the cautiоn later given by the court free the case of the prejudice already done to the rights of defendant. See
Jenkins v. Ore Co.,
For the error pointed out, there must be a
New trial.