No. 11944 INTHE SUPREME COURT OF THE STATE OF MONTANA

THE STATE OF MONTANA, Plaint iff and Respondent,

-vs

# - JOSEPH LEE ALLEN, Defendant and Appellant.

Appeal from: District Court of the Eighteenth Judicial District, Honorable Jack D. Shanstrom, Judge presiding. Counsel of Record: For Appellant: Berg, OtConnell,Angel & Andriolo, Bozeman, Montana. Richard Andriolo argued, Bozeman, Montana. For Respondent: Hon. Robert L. Woodahl, Attorney General, Helena,

Montana

# . J. C

## .Weingartner argued, AssistantAttorney General,

Helena, Montana. Thomas Olsdn, County Attorney, Bozeman, Montana.

Submitted: April 25, 1973 Decided: - 

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## 1973 Filed: 

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## IQ74Mr. Chief Justice James T. Harrison delivered the Opinion of the Court. This is an appeal from a conviction for firstdegree burglary. Appellant was tried in the district court of Gallatin County with the Hon. Jack D. Shanstrompresiding. A sentence of fifteenyears was imposed upon appellant following his conviction. The record shows that during the early morning hours of December 8, 1969, the Eagles Club Bar in Bozeman,Montana

was burglarized. There was no forced entry and the crimewas accomplished by the burglar hiding himself in the building until the club closed at 1:00 a.m. He thenwheeled the safe from the office where itwas kept into the bar area. This was done so he was not visible from the outside of the building. The safe

was turned on its back, the door pried off, and over $5,000 in small bills, fives,tens and twenties, stolen. The crimewas discovered when the janitor entered the building at 6:30 a.m. The police were immediately summoned and they began their investigation. In the course of that investigation a paper matchbook was found inside the safe. Thismatchbook along with other evidence taken from the club was forwarded to the F.B.I. laboratory inWashington,D.C. The F.B.I., through the use of chemicals,was able to develop a fingerprint on the frontof the matchbook cover. The print was then matched to the fingerprintsof appellant,which prints had been supplied to the F.B.I. by the Gallatin County sheriff's department. Further evidence introduced at the trial linking appellantwith the crime was that at approximately 4:00 a.m. on themorning of the burglary the Bozeman police ticketed the appellant's car for a parking violation. The automobile was parked directly in front of the Eagles Club. Appellant was identified by the bartender on duty that day as being in theclub twice on December 

### 7, 1969. The bartender further testified that appellant had been in the club on one other occasion, at least,when he had used the telephone booth for an extended period of time. Testimonywas put into the record that a person in the telephone booth could see into the office where the safe

was kept. Later on the day of the crime appellant purchased a used car by trading in his old car and paying the difference of the purchase price, $900, in cash. The clerk handling the transaction for the dealership testified the cash payment was made up of small bills, mostly fives, tens and twenties. Three timepay paymentswere made by appellant on the sameday, all in cash in smallbills. Two conflicting statementsmade by appellant were also put into the record. Appellant testified at the trial that he was with a friend of his until 11:30 p.m. on the night of the burglary. At that time he went to his car and itwould not start so he left it there until the nextmorning when he returned and picked itup. At the time he was arrested he stated he was with his friend until 5:00 or 6:00 a.m. and then went home. The officers testified that appellant's car was not in front of the Eagles Clubwhen they came to investigate the crime. Counsel for Allen presents three issues on this appeal. The first issue iswhether therewas sufficient evidence to support theverdict and whether the judge should have instructed the jury to find appellant not guilty on that basis. The second issue iswhether the court should have given a precautionary instruction concerning the fingerprint evidence. The appellant's proposed instructionNo. 19 read: "You are instructed that to warrant a conviction, the fingerprints corresponding to those of the accusedmust have been found in the place where the crimewas committed under such circumstances that they could only have been impressed at the timewhen the crime was committed." The final issue also concerns the use of fingerprint evidence, being whether itwas error for the court to refuse to give appellant'soffered instructionNo. 20 which read: "You are instructed thatwhere it appears that therewere at the scene of the crime fingerprints other than those identified as the defendant's, and which are neither identified nor explained, the proof of the defendant's prints isnot sufficient to support a conviction. " The appellant's argument concerning the sufficiency of the evidence is that the evidencewas circumstantialand therefore does not support the verdict, as he states: 

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## * * The only issue for the jury to decide was the identity of the individual or individuals involved. Thus the State attempted to establish by proof of several pieces of evidence whichwhen viewed separately or in their entirety are insufficient both in quality and quantity to support theverdict of the jury." This Court has been faced with this issue in several previous

cases. Justwhat weight and use should be given to circumstantial evidence in a criminal trial? We answered that question and established a test in Statev. Cor, 144Mont. 323, 326, 396 P.2d 86 (1964). In that casewe held: "Circumstantial evidence isnot always inferior in quality nor is it necessarily relegated to a

'second class status' in the consideration to be given it. The very fact it is circumstantial isnot a sufficientallegation to justify a reversal of the judgment for such evidencemay be and frequently is,most convincing and satisfactory. In any criminal case, evidence that is material, relevant and competent,will be admitted, 'nothingmore and nothing less.' The test iswhether the factsand circumstances are of such a quality and quantity as to legally justify a jury in determining guilt beyond a reasonable doubt. If suchbe the case, then the court should not, indeed cannot, set aside the solemn findings of the trier of the facts." This test was used recently in a first degreemurder casewhere the evidence of guiltwas based on circumstantialevidence. Statev. Gallagher, Mont

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# - - , 30 St.Rep. 467 (May,1973). In the instant case the evidence presented to the jury included: a positive identification of a fingerprint found in the safe at the scene of the crime as being the appellant's;the appellantwas placed in the bar on the nightbefore the burglary at two different times; his car was parked in front of the bar at about the time the burglary took place; the car was not there when thepolice arrived to investigate the crime; the payment of cash in smallbills for an automobile on the day of the crime; three loan paymentsmade on that day in small bills of currency;and the conflicting statementsmade by the appellant concerning his actions on the day of the burglary. In our opinion this is enough evidence both in quantity and quality to legally justify the jury finding the verdict that

was found in this case. It is safe to say the most damaging piece of evidence produced against the appellantwas the fingerprinton the matchbook. Thematchbook was found inside the safe by the investigating officers and sent to the F.B.I. laboratory where by the use of chemicals a fingerprint was developed on the cover. This print was identified by the F.B.I. as belonging to appellant from fingerprints supplied to the F.B.I. by the Gallatin County sheriff'sdepartment. Appellant argues that the use of this evidence without

a precautionary instruction "was extremely prejudicial to the defendant (appellant)as it allowed the jury to convict the defendant solely on the basis of his fingerprinton a transitory matchbook." In supportof thisposition the appellant cites United Statesv. Van Fossen, 460F.2d 38, 41 (4thCir. 1972): "Towarrant conviction the trier of fact must be able to reasonably infer from the circumstances that the fingerprintswere impressed at the time the crimewas committed." Without commenting or taking a position onwhether that case establishes the correct standard on fingerprintevidence it is the opinion of this Court that the case is not applicable on itsfacts. In that case the only evidence connecting the defendant with the crimewas his fingerprints and the court at page 41,held: 

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## * * The flaw in the government's case is the failureof the evidence to disclosewhen the crimewas committed and when Van Fossen's fingerprints were placed on the items seized from Brown's shop. For this reason the prosecution rests on conjectureand suspicion. Because no evidence in the record suggests that theprints were impressed when the crimewas committed, the jury could only have guessed at this conclusion." Here, absent the fingerprint there is substantial evidence linking the appellantwith the commissionof the crime. The time of the commissionof the crime had been determined within

a fewhours. While the F.B.I. expert could not saywhen the fingerprintwas impressed on thematchbook, the jury could infer logically from his testimony that the appellant was the last person to touch thematchbook. The testimony by the F.B.I. expert on this point was: 

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## * * AS I stated, frequently handling of this specimenwould have destroyed that, if he would have placed his finger over thisprint which I developed or in the same spot chances are that print would have been of no value because it would have been destroyed.* 

## * *I1 This,along with thematchbook found inside the safe, which had been moved from its location to onewhere it was notvisible from the street, laid on its back and itsdoor pried open and over five thousand dollars in smallbills removed, indicate this was not a "transitory" matchbook and gave the jury every right to believe ithad to get into the safe after ithad been opened and during the removal of its contents. Itwas not error for the court to permit the use of the matchbook as evidence without appellant's requested instruction and the court did not err in refusing to give the cautionary instructions.The Court finds no merit in the last issue. Appellant cites no case which supports his argument. To require this type of instructionwould place too great a burden on law enforcement. The judgment is aff

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