State v. Tew , 234 N.C. 612 ( 1951 )

68 S.E.2d 291 (1951) 234 N.C. 612

STATE
v.
TEW.

No. 219.

Supreme Court of North Carolina.

December 12, 1951.

Harry McMullan, Atty. Gen., Claude L. Love, Asst. Atty. Gen., for the State.

E. R. Temple, Jane A. Parker, Smithfield, for defendant appellant.

WINBORNE, Justice.

Appellant lists sixty-four assignments of error in the record on this appeal, of which thirty are based upon exceptions to the admission of evidence, and twenty-five or more upon exceptions to the charge of the court,—covey shots, so to speak. Upon these, ten questions are stated in brief of appellant, as being involved. We find, however, upon careful consideration, that only a few of them require express treatment.

1. Defendant in his brief contends that the court erred in admitting into evidence "pictures of the glass, fingerprints and other objects in explanation of the testimony of the witness", the fingerprint expert. This contention is based upon numerous exceptions. It is without merit.

While the decisions of this Court uniformly hold that in the trial of cases, civil or criminal, in this State, photographs may not be admitted as substantive evidence, Honeycutt v. Brick Co., 196 N.C. 556, 146 S.E. 227; State v. Perry, 212 N.C. 533, 193 S.E. 727, the decisions hold that where there is evidence of the accuracy of a photograph, a witness may use it for the restricted purpose of explaining or illustrating to the jury his testimony relevant and material to some matter in controversy. See State v. Gardner, 228 N.C. 567, 46 S.E.2d 824, citing cases.

Among the cases there cited is Elliott v. Power Co, 190 N.C. 62, 128 S.E. 730, 731, in which this Court said: "Plaintiff excepted because certain pictures were submitted to the jury. All of these pictures were used to explain the witnesses' testimony to the jury. It was not error for the court to allow the jury to consider the pictures for this purpose and to give them such weight, if any, as the jury may find they are entitled in explaining the testimony."

Defendant cites and relies upon State v. Hooks, 228 N.C. 689, 47 S.E.2d 234, and State v. Palmer, 230 N.C. 205, 52 S.E.2d 908. It does not seem, however, that the decisions in these cases are in conflict with the principles hereinabove stated.

2. The next group of assignments of error treated in defendant's brief is based upon exceptions to testimony of the representative of the State Bureau of Investigation, the fingerprint expert, given on direct examination as to comparison of fingerprints lifted from the broken glass at the scene of the alleged crime, and photographed by him, with fingerprints of Hubert Tew, the defendant here, taken by some other person, at a local prison camp, and then on file in the files of the Bureau, and that they corresponded. It is noted that when the testimony was admitted, defendant entered a general objection. But in the brief of defendant the objection is expressly limited to the effect of the testimony, that is, that, by the admission of it, "defendant's character was placed in issue * * * without legal justification". It is contended that by this testimony the jury was informed that defendant had previously served in a prison camp—which had the effect of bringing his character in issue.

The well settled rule, as restated by Denny, J., in State v. Godwin, 224 N.C. 846, 32 S.E.2d 609, that when incompetent evidence is admitted over objection and the same evidence has theretofore or thereafter been admitted without objection, the benefit of the objection is ordinarily lost; but, as stated by Brogden, J., in Shelton v. Southern R. R., 193 N.C. 670, 139 S.E. 232, 235, "the rule does not mean that the adverse party may not, on cross-examination, explain the evidence or destroy its probative value, or even contradict it with other evidence upon peril of losing the benefit of his exception."

Applying this rule, as so interpreted, to the situation in hand, if it be conceded that the testimony to which objection was made is objectionable, testimony to the same effect was brought out on cross-examination. Moreover, it appears that the cross-examination was not kept within the bounds of the rule as above stated. It developed testimony that the State Bureau of Investigation had five sets of fingerprints of defendant in its files. And indeed there is testimony, admitted without objection, that defendant stated that he had learned "after being arrested for different cases that it is best to keep your mouth shut". Hence on this record these assignments of error fail to show prejudicial error.

3. The assignment of error based upon exception to denial of defendant's motion for judgment as of nonsuit was properly overruled. State v. Huffman, 209 N.C. 10, 182 S.E. 705; State v. Combs, 200 N.C. 671, 158 S.E. 252; State v. Helms, 218 N.C. 592, 12 S.E.2d 243.

It is well established that evidence of the correspondence of fingerprints found at the scene of an alleged crime with those of an accused person, when given by a fingerprint expert, is admissible to prove the identity of the perpetrator of the offense. See State v. Combs, supra; State v. Huffman, supra; State v. Helms, supra; State v. Hooks, supra. See also 20 Am.Jur. 329, Evidence, Sec. 357; 23 C.J.S., Criminal Law §§ 876, 877, 878; Rogers on Expert Testimony 3rd Ed. (Werne) Sec. 88; Wigmore on Evidence 3rd Ed. Section 414; N. C. Evidence by Stansbury, Sec. 86 and Sec. 134; see also Annotations 16 A.L.R. 370; 63 A.L.R. 1324.

In State v. Huffman, supra, this Court said [209 N.C. 10, 182 S.E. 707]: "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 State v. Combs, supra.

And in State v. Helms, supra, it is stated that evidence of fingerprint identification, that is, proof of fingerprints corresponding to those of the accused, found in a place where the crime was committed under such circumstances that they could only have been impressed at the time when the crime was committed, may be sufficient to support a conviction in a criminal prosecution. 20 Am.Jur. pp. 329 and 1076.

In the light of these principles the testimony of the fingerprint expert tending to show that fingerprints found at the scene of the crime correspond with those of defendant, taken after his arrest in this action, coupled with the testimony of Mrs. George tending to show that, though she personally attended her service station, she did not know, and had not seen defendant before the date of the crime, is sufficient to take the case to the jury and to support a finding by the jury that defendant was present when the crime was committed and that he, at least, participated in its commission. State v. Huffman, supra.

4. The assignments based upon exceptions to the charge, upon careful consideration, fail to point out prejudicial error.

5. Other assignments of error have been given due consideration, and fail to disclose reason for disturbing the judgment on the verdict rendered by the jury.

No error.