                                     No. 11944

         I N THE SUPREME COURT O THE STATE O M N A A
                                F           F OTN




THE STATE OF MONTANA,

                              P l a i n t i f f and Respondent,

         -vs   -
JOSEPH LEE ALLEN,

                              Defendant and A p p e l l a n t .



Appeal from:         D i s t r i c t Court o f t h e E i g h t e e n t h J u d i c i a l D i s t r i c t ,
                     Honorable J a c k D. Shanstrom, Judge p r e s i d i n g .

Counsel of Record:

    For Appellant :

               Berg, O t C o n n e l l , Angel & A n d r i o l o , Bozeman, Montana.
               Richard A n d r i o l o a r g u e d , Bozeman, Montana.

    F o r Respondent :

               Hon. R o b e r t L. Woodahl, A t t o r n e y G e n e r a l , Helena,
                Montana   .
               J. C . Weingartner argued, A s s i s t a n t Attorney General,
                Helena, Montana.
               Thomas Olsdn, County A t t o r n e y , Bozeman, Montana.



                                                   Submitted:          A p r i l 25, 1973



Filed:    @ f l y - $IQ74
                                                        Decided: -
                                                                             -
                                                                       MAY 9 1973
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 Galla-
  tin County    with the Hon. Jack D. Shanstrom presiding.    A
  sentence of fifteen years was imposed upon appellant follow-
  ing 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 investi-
 gation a paper matchbook was found inside the safe.    This match-
 book 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 appel-
  lant 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 testi-
fied 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 trans-
action for the dealership testified the cash payment was made
up of small bills, mostly fives, tens and twenties. Three time-
pay 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 finger-
         prints other than those identified as the de-
         fendant's, and which are neither identified
         nor explained, the proof of the defendant's
         prints is not sufficient to support a con-
         viction. "
         The appellant's argument concerning the sufficiency of
the evidence is that the evidence was circumstantial and there-
fore does not support the verdict, as he states:
         " * * * The only issue for the jury to decide
         was the identity of the individual or individ-
         uals 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 circumstan-
tial 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 re-
         versal of the judgment for such evidence may be
         and frequently is, most convincing and satis-
         factory. 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     - - 30
                                     P.2d ,          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 match-
book.   The matchbook was found inside the safe by the investi-
gating 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 defend-
ant 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 finger-
         prints 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. ex-
pert 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.* * * I 1
         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, in-
dicate 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.   Appel-
         lant 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




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