No. 11944 

IN THE 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, Assistant Attorney General, 

Helena, Montana. 

Thomas Olsdn, County Attorney, Bozeman, Montana. 

Submitted: April 25, 1973 

Decided: - MAY - 9 1973 

Filed: @fly-$ IQ74 
Mr. Chief Justice James T. Harrison delivered the Opinion of 

the Court. 

This is an appeal from a conviction for first degree 

burglary. Appellant was tried in the district court of Gallatin County with the Hon. Jack D. Shanstrom presiding. A 

sentence of fifteen years 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 crime was 

accomplished by the burglar hiding himself in the building until 

the club closed at 1:00 a.m. He then wheeled the safe from the 

office where it was 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 crime was 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. This matchbook along with other evidence taken from the club was forwarded 

to the F.B.I. laboratory in Washington, D.C. The F.B.I., through 

the use of chemicals, was able to develop a fingerprint on the 

front of the matchbook cover. The print was then matched to the 

fingerprints of 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 appellant with the crime was that at approximately 4:00 a.m. on 

the morning 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 the 
club 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. Testimony was 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 payments were made by appellant on the same day, all in cash 

in small bills. Two conflicting statements made 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 it would 

not start so he left it there until the next morning when he 

returned and picked it up. 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 Club when they came to investigate the crime. 

Counsel for Allen presents three issues on this appeal. 

The first issue is whether there was sufficient evidence to 

support the verdict and whether the judge should have instructed 

the jury to find appellant not guilty on that basis. The second 

issue is whether the court should have given a precautionary 

instruction concerning the fingerprint evidence. The appellant's 

proposed instruction No. 19 read: 

"You are instructed that 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." 

The final issue also concerns the use of fingerprint evidence, 

being whether it was error for the court to refuse to give appellant's 
offered instruction No. 20 which read: 

"You are instructed that where it appears that 

there were 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 is not sufficient to support a conviction. " 

The appellant's argument concerning the sufficiency of 

the evidence is that the evidence was circumstantial and therefore does not support the verdict, as he states: 

" * * * 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 

which when viewed separately or in their entirety 

are insufficient both in quality and quantity 

to support the verdict of the jury." 

This Court has been faced with this issue in several previous 

cases. Just what weight and use should be given to circumstantial evidence in a criminal trial? We answered that question 

and established a test in State v. Cor, 144 Mont. 323, 326, 396 

P.2d 86 (1964). In that case we held: 

"Circumstantial evidence is not 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 

is not a sufficient allegation to justify a reversal of the judgment for such evidence may be 

and frequently is, most convincing and satisfactory. In any criminal case, evidence that 

is material, relevant and competent, will be 

admitted, 'nothing more and nothing less.' 

The test is whether the facts and circumstances 

are of such a quality and quantity as to legally 

justify a jury in determining guilt beyond a 

reasonable doubt. If such be 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 degree murder case where 

the evidence of guilt was based on circumstantial evidence. 

State v. Gallagher, - Mont . -1 - P.2d - , 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 appellant was placed in the bar on the night before 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 the police arrived to investigate the crime; 

the payment of cash in small bills for an automobile on the 

day of the crime; three loan payments made on that day in small 

bills of currency; and the conflicting statements made 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 appellant was the fingerprint on the matchbook. The matchbook 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's department. 

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 fingerprint on a transitory 

matchbook." In support of this position the appellant cites 

United States v. Van Fossen, 460 F.2d 38, 41 (4th Cir. 1972): 

"To warrant conviction the trier of fact must be 

able to reasonably infer from the circumstances 

that the fingerprints were impressed at the time 

the crime was committed." 

Without commenting or taking a position on whether that case 

establishes the correct standard on fingerprint evidence it is 

the opinion of this Court that the case is not applicable on its 
facts. In that case the only evidence connecting the defendant with the crime was his fingerprints and the court at page 

41, held: 

" * * * The flaw in the government's case is the 

failure of the evidence to disclose when the 

crime was committed and when Van Fossen's fingerprints were placed on the items seized from 

Brown's shop. For this reason the prosecution 

rests on conjecture and suspicion. Because no 

evidence in the record suggests that the prints 

were impressed when the crime was committed, the 

jury could only have guessed at this conclusion." 

Here, absent the fingerprint there is substantial evidence 

linking the appellant with the commission of the crime. The 

time of the commission of the crime had been determined within 

a few hours. While the F.B.I. expert could not say when the 

fingerprint was impressed on the matchbook, the jury could infer 

logically from his testimony that the appellant was the last 

person to touch the matchbook. The testimony by the F.B.I. expert on this point was: 

" * * * AS I stated, frequently handling of this 

specimen would have destroyed that, if he would 

have placed his finger over this print 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 the matchbook found inside the safe, 

which had been moved from its location to one where it was 

not visible from the street, laid on its back and its door pried 

open and over five thousand dollars in small bills removed, indicate this was not a "transitory" matchbook and gave the jury 

every right to believe it had to get into the safe after it had 

been opened and during the removal of its contents. 

It was 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 instruction would place too great a burden on 

law enforcement. 

The judgment is aff 

f 

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