Ernest S. Borum v. United States , 380 F.2d 595 ( 1967 )

BAZELON, Chief Judge.

Borum appeals from a jury conviction for housebreaking. In another appeal, decided today, we affirmed Borum’s conviction for housebreaking and robbery committed one month after the alleged crime in the instant case. (Nos. 20092 and 20093, Stevenson and Borum v. United States, 127 U.S.App.D.C. -, 380 F.2d 590.) In that case, as in this one, the Government’s fingerprint evidence proved that at some time the defendants touched objects found at the scene of the crime. But there the Government introduced additional evidence indicating that these objects were generally inaccessible to the defendants and that therefore the objects were probably touched during the commission of the crime. Here, the Government introduced no evidence indicating that the objects were generally inaccessible to Borum. Therefore, we reverse.

The Government’s evidence showed that complainant’s home was entered and ransacked in his absence between 11:45 a.m. and 3:00 p.m. on June 2, 1965. Four fingerprints, taken from one or two empty jars, were identified as Bor-um’s.¹ Other fingerprints, found on different jars and on a metal box, had not been identified by the time of trial.² Complainant testified that the jars had contained a valuable coin collection and that the coin collection was stolen along with other items of personal property. However, Borum was tried for, but not convicted of, grand larceny.³ On cross-examination and rebuttal the Government elicited testimony which, when all inferences are made in favor of the Government, placed Borum within a mile and a half of complainant’s home at about 1:00 p.m.⁴ Borum’s principal contention is that the trial court erred in denying his motions for acquittal at the conclusion of the Government’s case and at the conclusion of all the testimony.⁵

The Government’s evidence shows that Borum touched the one or two jars in question. But there is no evidence, either direct or circumstantial, which indicates that he touched the jars in the course of a housebreaking on June 2, 1965. Indeed, one of the Government’s own witnesses testified that Borum’s fingerprints could have been on the jars “indefinitely.”⁶ And another agreed that the fingerprints could have been on the jars “for a period of * * * years.” ⁷ The Government introduced no evidence which could account for, or even suggest an inference about, the custody or location of the jars during that period.

Of course, the jury may have thought that Borum could not have touched the jars at any other time or in any other place. The jury may have thought that Borum never had any opportunity to touch the jars outside the house either before or after complainant bought them.⁸ But that conclusion would have been based on speculation alone. The jury had no way to determine where the complainant purchased the jars, or how long he had them before June 2, or whether complainant ever removed them from his home, or how long the prints were on the jars.⁹ The Government need not negate all inferences consistent with innocence which could arise from the fingerprints.¹⁰ It negated none.¹¹

With evidence so inconclusive, a reasonable person must have a reasonable doubt about Borum’s guilt. ¹² The case should not have been submitted to the jury, for the Government produced no evidence, either direct or circumstantial, which could support an inference that the fingerprints were placed on the jars during commission of the crime. Fingerprint evidence is very reliable. It is a kind of evidence courts should encourage police to obtain. But to allow this conviction to stand would be to hold that anyone who touches anything which is found later at the scene of a crime may be convicted, provided he was within a mile and a half of the scene when the crime may have been committed. We decline to adopt such a rule.

Reversed with directions to enter a judgment of acquittal.

1 . A print of Borum’s right middle finger was found together with a print of his right ring finger. Two prints of his left middle finger were also found together. The Government expert could not tell whether the two pairs of prints were found on the same jar. Tr. 51, 70. Therefore, there were four separate fingerprints representing three different fingers which were found on one or at most two jars.

2 . Tr. 66-67.

3 . Borum was tried in this case on two counts — housebreaking and grand larceny. The jury found him guilty on the first count but could not agree on the second count. Tr. 224. The second count was dismissed one month after the trial.

4 . Tr. 169-75.

5 . The motion must be granted “if there is no evidence upon which a reasonable mind might fairly conclude guilt beyond reasonable doubt * * Curley v. United States, 81 U.S.App.D.C. 389, 392-393, 160 F.2d 229, 232-233, cert. denied, 331 U.S. 837, 67 S.Ct. 1511, 91 L.Ed. 1850 (1947). See also Cephus v. United States, 117 U.S.App.D.C. 15, 324 F.2d 893 (1963); Campbell v. United States, 115 U.S.App.D.C. 30, 316 F.2d 681 (1963); Cooper v. United States, 94 U.S.App.D.C. 343, 218 F.2d 39 (1954).

6 . Tr. 83.

7 . Tr. 68.

There can be no dispute in this case (1) that in order to make the fingerprints support Borum’s conviction of housebreaking the Government was required to show that he touched the jars on June 2, in the course of the housebreaking; and (2) that the Government relied on the fingerprint evidence alone. The trial judge charged the jury as follows:

The Court charges you, members of the jury, because of the fact that two of the Government’s expert fingerprint witnesses testified that latent fingerprints on certain objects may last indefinitely, unless the Government has proved beyond a reasonable doubt that the fingerprints the Government relies on were left by the defendant on June 2nd, 1965 at the time of the alleged housebreaking on the objects referred to in the expert’s testimony, you must find the defendant not guilty.

Now the Government rests its case in this matter of expert testimony on what is called circumstantial evidence. In criminal cases there are two types of evidence. One type is known as direct evidence, and another type of evidence is known as circumstantial evidence. By direct evidence is meant evidence of eye witnesses who saw the act perpetrated.

Now there was no one who testified here that they saw the defendant commit the housebreaking or grand larceny. The Government relies, as I said before, upon the circumstantial evidence of the fingerprints. Tr. 212.

In fact, the only “direct” evidence in the case was the testimony of an eye witness who said that Borum was not the man he saw on the complainant’s porch around the time of the crime. Tr. 94.

8 . It is at least reasonable to suppose that Borum touched the jars in question outside the house, since the police did not find Borum’s fingerprints on any of the other jars or on anything else in the house, even though the house was forcibly entered and thoroughly ransacked. See. e. g., tr. 31-32, 66-67.

9 . The Government expert agreed that he could not tell whether the prints “were recent prints or old prints.” Tr. 68.

10 . Hunt v. United States, 115 U.S.App.D.C. 1, 316 F.2d 652 (1963), Holland v. United States, 348 U.S. 121, 75 S.Ct. 127, 99 L.Ed. 150 (1954), Curley v. United States, note 5, supra.

11 . Borum made no attempt to explain the existence of his fingerprints, but under our law he was not obliged to do so.

12 . Similar evidence was found insufficient in Cephus v. United States, note 5, supra; Campbell v. United States, note 5, supra; Cooper v. United States, note 5, supra; and Hiet v. United States, 124 U.S.App.D.C. 313, 365 F.2d 504 (1966). (In Hiet one judge found the evidence insufficient. The concurring judge relied on another infirmity in addition to the weakness of the evidence.) In those cases, as in this one, the Government failed to prove that the objects were generally inaccessible to the defendants. Compare Stevenson and Borum v. United States, supra.