274 N.C. 159 | N.C. | 1968
Defendant assigns as error the denial of his motion for judgment of compulsory nonsuit made at the close of the State’s evidence. The defendant offered no evidence.
On 8 April 1966 Mrs. Elizabeth H. Keith was employed by the State Highway Commission. Her office was next door to the office of her supervisor. About 8:30 a.m. on the same day she went into her supervisor’s office to take dictation. The supervisor then closed the door that separates the two offices. The front door to Mrs. Keith’s office that leads into the hallway stays closed all the time. It has a glass door but one cannot see through it. One can hear the door open and shut. She does not recall hearing that door make any noise while she was in the supervisor’s office taking dictation. She does not recall seeing defendant that morning between 8:30 and noontime. There was a $20 bill and a $10 bill in her wallet which was in her pocketbook which she had left in her office in the desk drawer underneath the typewriter. She finished taking dictation about 12 o’clock noon, about which time she left and went to Efird’s Department Store. She bought something at Efird’s for one of her sons. She cannot remember what it was. She paid cash for it and used the $10 bill. Just after she had left Efird’s and gone down the street, she missed the $20 bill. She ran back and asked the clerk what she had given him, if she had given him a $10 bill, and he said yes. It scared her when she found the $20 bill was missing. She thought she had dropped it out when she pulled out the $10 bill, and she and the clerk looked on the floor and elsewhere but could not find the $20 bill. She ran back to where she worked and told them she had lost a $20 bill. She told Mrs. Daniels, a secretary in the same office whose desk is situated beside hers, that she thought she had lost a $20 bill.
In response to the question as to what she did between Friday, the 8th, and Friday, the 15th, she testified as follows: “In between I just thought I had lost the $20.00 bill and didn’t do anything about it, but on the 15th I had $41.00 to disappear right out of my desk drawer and that is when the SBI man was called in.” On 15 April 1966 she said the following to Mr. Stephen R. Jones, the SBI agent: “I had had $41.00 to get gone; $20.00 to get gone on the 8th, and $41.00 on the 15th.” The $41 was just lying loose in the middle drawer of the desk.
Between 8 April and 15 April 1966 she saw defendant James Charles Smith. He was an employee of the State Highway Department and emptied the trash can in the office daily. Her trash can was right behind her desk and about three feet from it.
Stephen R. Jones, who is Supervisor of Identification and Photography at the State Bureau of Investigation in Raleigh, had previously been employed by the Federal Bureau of Investigation for two years and nine months. He has had extensive classroom train
Since 15 April 1966 Mr. Jones has had occasion to take fingerprint samples from the defendant. He testified:
"... I took the defendant’s fingerprints the 7th month, 11th day, 1967, in the back of this courtroom. Mr. Harry M. Smith and myself had previously taken his prints on the 5th month, 3rd day, 1966. I made a comparison of the prints of the defendant which I obtained on the 11th day of July, 1967, with the latent prints which I lifted from the wallet of Mrs. Elizabeth H. Keith on the 15th day of April, 1966.
"I have an opinion satisfactory to myself and it is my opinion that one of three latent prints, of value for identification purposes, lifted from the plastic folder of this wallet, was made by the right thumb, representing this position here on this latent print here lifted, was made by the one and the same James Charles Smith. I was able to identify the other prints so lifted. One of them was identified as being the number 3, the right*163 middle finger of Mrs. Elizabeth H. Keith, and the other one was identified as being the right thumb or the number 1 finger of Mrs. Elizabeth H. Keith. There was two other prints but they were of no value for identification purposes. I lifted the prints from the wallet on the 15th day of April, 1966, and I took the fingerprint of the defendant on the 11th day of July, 1967.
“The article handed me marked for identification as State’s Exhibit No. 2 is a white surface containing an inked impression of the right thumb print of James Charles Smith which I took on July 11, 1967. (State’s Exhibit No. 2 was offered and received in evidence.)
“The basis of my comparison of this latent print I lifted with the print of the defendant’s fingers were four basic points of identification which we use. They are known as Galton points of identification, Ending Ridge, Bifurcation, Ridge Dot, Ridge Island, have to do with these ridges which can be seen on them; some of these ridges flow evenly and some split and come back into one ridge, and these are the points that I used to make my comparison and identification. I compared these points that I refer to on these two State’s Exhibits 2 and 3 and in doing so I became convinced that they were made by one and the same finger.
“(Witness goes to the jury box and points out some of the points of comparison on the prints.)
“In studying these prints, we use a five-powered magnifying glass to pick out the points of comparison and, as a general rule, I do not go into Court without at least twelve points of identification, and while in this case I do not recall just how many points of identification I did have, however, I know that there were more than twelve.”
Mr. Jones testified on cross-examination that there were several fragmentary prints in this billfold wherein there were not sufficient points to make an identification of anyone. This wallet, State’s Exhibit No. 1, was given to him on 15 April 1966; and, as far as he knows, the defendant’s print could have been put on it anytime after 8 April 1966. He did not testify in any way as to when this latent print identified as defendant’s was put on there. He just testified as to the identity of it. A latent print could stay on an article used daily for a full week or more, four or five weeks, if it had not been smeared or erased. He said on redirect examination that the finger
“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.” Anno: Evidence — Finger, Palm, or Footprint, 28 A.L.R. 2d 1115, 1154, § 29. See also S. v. Combs, 200 N.C. 671, 158 S.E. 252; S. v. Huffman, 209 N.C. 10, 182 S.E. 705; S. v. Helms, 218 N.C. 592, 12 S.E. 2d 243; S. v. Palmer, 230 N.C. 205, 52 S.E. 2d 908; S. v. Tew, 234 N.C. 612, 68 S.E. 2d 291; 29 Am. Jur. 2d, Evidence, § 375; 30 Am. Jur. 2d, Evidence, § 1144; 3 Wharton’s Criminal Evidence, 12th Ed., § 982, p. 480.
It is well-settled law that circumstantial evidence, if not too remote, is admissible to prove larceny. S. v. Mihoy, 98 N.H. 38, 93 A. 2d 661, 35 A.L.R. 2d 852; Underhill’s Criminal Evidence, 4th Ed., Larceny, § 505, p. 1022.
The warrant and the indictment both charge defendant with the larceny of $20 in money, the property of Elizabeth H. Keith, on 8 April 1966. Defendant is not charged with, and is not on trial for, the larceny of any part of the $41 in money, the property of Elizabeth H. Keith, which the State’s evidence tends to show was stolen from her desk in the State Highway Commission building on 15 April 1966.
The State’s evidence tends to show the following facts: On 8 April 1966 Elizabeth H. Keith, an employee of the State Highway Commission, had a $20 bill and a $10 bill in her wallet which was in her pocketbook in a desk drawer underneath the typewriter in her office when she went into the adjoining office of her supervisor to take dictation. She finished taking dictation about 12 o’clock noon, about which time she left and went to Efird’s Department Store. She carried her wallet and pocket book with her. She bought something at Efird’s, paid cash, and used her $10 bill. Just after she had left Efird’s and had gone down the street, she missed the $20 bill. She ran back and asked the clerk what had she given him, if she had given him a $10 bill, and he said yes. It scared her when she found the $20 bill was missing. She thought she had dropped it out of her wallet when she pulled out the $10 bill, and she and the clerk looked on the floor and elsewhere but could not find the $20 bill. She went back to where she worked and told them she had lost a $20 bill. She told Mrs. Daniels, a secretary in the same office whose desk is situated beside hers, that she thought she had lost a $20 bill.
What is said in S. v. Mullinax, 263 N.C. 512, 139 S.E. 2d 639, is applicable here:
“The motion for nonsuit on the larceny count should have been allowed. There is no evidence that Lenoir Country Club, Inc., found any money to be missing or had any money in the building. . . . There is simply no evidence that any money belonging to it has been stolen. The State failed to prove the larceny as alleged.”
The court erred in overruling the motion for judgment of compulsory nonsuit. The judgment of the court below is
Reversed.