Bingle v. State , 144 Tex. Crim. 180 ( 1942 )

In his motion for rehearing, appellant insists that the window panes upon which his fingerprints were found were not sufficiently identified as those that were taken from the building attempted to be burglarized, and that, therefore, the conviction could not be sustained on such testimony. Appellant made no objection to the witness' testifying that the fingerprints found upon the window panes examined by him corresponded to those of appellant's, and same was permitted to go before the jury, without objection. Any defect in the predicate authorizing the introduction of such testimony was thereby waived, and could not, by a complaint as to the sufficiency of the evidence to sustain the conviction, be raised, for the first time, after the trial.

Appellant insists that, the evidence not showing that the fingerprints found on the window panes were not there before the commission of the alleged offense, this brings his case within the rule announced in Giacona v. State,62 S.W.2d 986; 124 Tex.Crim. R., to the effect that such proof was required. The instant case is distinguishable from the Giacona case, supra. Here the appellant and his companion were arrested and taken into custody near the window which had recently been taken from the building, and from which window the panes had been removed and stacked on the ground. These facts are inconsistent with the theory that the fingerprints could have been placed on the window panes before they were removed.

As we said in Grice v. State, 151 S.W.2d 211:

"Our investigation leads us to conclude that where the evidence, as here, shows the finger print found at the scene of the crime was left there by the criminal at the time the crime was committed, thereby excluding the hypothesis that it might have been placed there innocently prior to or subsequent to the commission of the crime, and the evidence further shows that said print is identical with known prints of accused, that such evidence satisfies the law and excludes every reasonable hypothesis save guilt of the accused."

Appellant's motion for rehearing is overruled.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.