Ivey v. State , 176 So. 2d 611 ( 1965 )

176 So.2d 611 (1965)

Fred IVEY, Appellant,
v.
STATE of Florida, Appellee.

No. 64-1028.

District Court of Appeal of Florida. Third District.

June 30, 1965.

Robert L. Koeppel, Public Defender, and Phillip A. Hubbart, Asst. Public Defender, for appellant.

Earl Faircloth, Atty. Gen., and James T. Carlisle, Asst. Atty. Gen., for appellee.

Before TILLMAN PEARSON, CARROLL and SWANN, JJ.

PER CURIAM.

Fred Ivey appeals a judgment of conviction and sentence of five years in the State penitentiary for breaking and entering a store building with intent to commit felony and grand larceny. The record reveals that the only evidence offered by the State to prove the identity of the appellant as the culprit was the appellant's fingerprint on a glass jalousie which was taken from the front door of the store building.

The State concedes that this case is governed by the principle set forth in Tirko v. State, Fla.App. 1962, 138 So.2d 388, that fingerprint evidence must meet the requirement that the circumstances must be such that the print could have been made only at the time the crime was committed. This requirement was not met in this case because the print was in a public place and the record does not preclude that it might have been placed there some time before the crime.

The defect is not cured by the fact that appellant stated to a policeman that he had never been in Florida City where the building was located nor is it cured by the testimony of the owner that he had never seen the appellant there.

Other points presented in the brief are without merit. The judgment and sentence in Case No. 64-5912 is affirmed. The judgment and sentence in Case No. 64-5913 is reversed.