ARK.] HOPKINS V. STATE. 391 HOPKINS V. STATE. • Opinion deliyered June 13, 1927. 1. CRIMINAL LAW—TESTiMOY BROUGhT • OUT ON CAOSS-EICAMINATION. • ,a" prosecution for burglary, it was, not . eryor.. to,!refuse defendant's motion to exclude evidence:of the State's witness tbat finger prints of no two persons were identical where suCh testi-ineny' waS elicited bk ;defendant on croSs-exaMination. 2. CRIMINAL LAW—OPINION OF ' EXPERT WITNES.. ; --In a progeention for burglary, a motion by defendant to exclude the testimony of • an expert witness on• behalf ;of the State; that finger prints of • no , two persons were , identical, was properly reiused, where the witness stated that his answer .was not a matter a opinion but one of fact, as demonstrated by multiPlied ' thousands' Of tests. 3. CRIMINAL LAW—pEkONSTRATIGN OF *ITNESS' ABILiTY ' TO ' DISTIN-. GUISA FINGER PRINTS.—In a prosecution for burglary, refusal to exclude from consideration of the jury a demonatration: of the 'ability of a witness to distinguish finger prints, and refusal to admonish . the , jury to disregard it, held not•error, sinc,e it is competent to examine the witness ,Who proPose.s te testify, as an
expert touChing his qualificationa; ' ''• 4. CRIMINAL LAWCHARGE TO JURORS IN DEOENDANT'S ABSENCE.-:–In a prosecution "for burglary, it waS reversible error for the Court to 'charge' individual jurors as to the - law. of the case in the • absence of accused and his counsel, and After the jury . had ;been deliberating for a , c . onside . rable pe . riod of . time without reaching a yerdict. Appeal from . -Franklin Circuit • Court, • Ozark Disj. trict;. J. 0..Kincfflinon, Judge ; 'reversed. J. p. .fiensOn, for appellant. W. Ap p . legte .Attoine 3'r G _ • e neral and..garden Modse, Assistant; for aPpellee. • • , . , SMITH,-J. Appellant was, tried:under an indictment charging . him with the : crimes of :burglary, and grand larceny.. -He was acquitted- on the lareeny, charge, but :Fos convicted on the burglary count of the indictment and given a sentence -in the State t'enitentiary.,, .; . .„. A bank at Altus!had been entered , by :burglars, .who; after. entering the vault where -the -Safety deposit -boxes were'kept i broke into . Several of -these boxes. When:the sheriff arrived at the scene he observe&finger taints on
-392 HOPKINS V. STATE. [174 the boxes, and he caused photographs of these finger prints to be made. Appellant had been confined in the State Penitentiary, and while there his finger prints had been taken, and at his trial W. H. Bennett, who testified that he was an expert in the comparison and identification of finger prints, having devoted many years to that study, further testified that the finger prints on the boxes were identical with those of appellant made at the penitentiary. The witness Bennett was subjected to a searching cross-examination by counsel for appellant, in the course of which he stated that the finger prints of no two persons were identical. After eliciting this opinion, counsel for appellant moved to exclude it, and assigned as error the refusal of the court so to do. We think that no error was committed in this ruling, for the reason, first, that counsel's cross-examination brought out the answer. A second reason is that the witness stated that bis answer was not an opinion, _but was a fact, which had been demonstrated to be true after multiplied thousands of tests, and that he himself had made innumerable tests without finding any finger prints of different individuals to be identical. The case of Moon v. State of Arizona, 198 Pac. 288, 22 Ariz. 418, annotated in 16 A. L. R. 362, gives an interesting review of the development of the study of finger prints, and in the annotator's note it is said that the courts have uniformly held that evidence as to the correspondence of finger prints is admissible to prove identity. The cross-examination of the witness Bennett was devoted to an attempt to discredit the ability of the witness to distinguish between different finger prints, and, upon the redirect examination of the witness by the prosecuting attorney, the record contains the following recitals : "At this point the prosecuting attorney requested the court to permit the witness to make a demonstration to the jury of his ability to compare finger prints. The court granted the request over the objec-
ARK.] HOPKINS V. STATE. 393 tions and exceptions of the defendant. Whereupon the witness, in the presence of the jury and with the assist; ance of the sheriff, had each of the jurors to . place his left thumb on a piece of paper and sign his name thereto. Witness left the room, and the sheriff had . Mr. W. T. Blaylock, one of the jurors, to place his left thumb on a piece of paper without his name. Witness was called back and given these pieces of paper. After a few minutes, he said it was Mr. Blaylock's finger print." Counsel for appellant asked the court to exclude from the consideration of the jury this demonstration, and to admonish the jury to disregard it, and an exception was saved to the refusal of the court to so instruct the jury. In the case of 'Moon v. State of Arizona, supra, the exact demonstration permitted in this case was made, and that action was assigned as error, but -the Supreme Court of Arizona, after saying that there was no pretense that any trick or device had been employed, held that the test was proper to determine the skill of the witness in identifying 'finger prints. In holding that no error had . been committed, the court quoted from the brief of counsel. for the State as follows : " To a layman, unsophisticated and incredulous, the idea that a finger laid on a clean sheet of paper, leaving no visible trace, thereby leaVes a signature upon that paper, absolutely and positively, is a fact startling enough, but to see that finger print development under the finger-print powder is a demonstration impressive and convincing. It might well be that, until- a-Jury-man witnessed this demOnstration, he would never believe that a plain porcelain slab would reveal the incriminating finger print, but, having, seen their own finger prints developed from invisible 'impressions on sheets of paper, it was no longer a question of speculation; it , was to the jUryman a fact as commonplace' as radium, or wireless, or flying in the air." . The court further said that, "for obviouS reasons, the admission of experimental testimony must largely
394 HOPKINS v. • STATE.; [174 rest in the discretion of the trial judge, and the exercise of this discretion will not be controlled, unless it : is manifestly. abused." Sep also the amiotated case of State of Nevada v, Kuhl; . 175. Pao. 190, 3 A. L. R. 1694, 42 N. W. 185, whore a somewhat similar demonstration was made in the pres-: ence of the jury, and the testimony held admissible, after, an extensive review of the authorities. It has always been held competent to examine a wa-rless who proposes to testify as an expert, touching his qualifications as such. At § 62 of the chapter on "Expert and Opinion Evidence," in 11 R. C. L. page 646, it is . said that: "He (the expert) may also be subjected to tests to determine the value of his opinion. Thus a handwriting exp . ert has often been required to pass- on other signatOes sub initted to him on the witness stand; though they were not relevant to the case." There is a conflict in the authorities, however, as to whether this examination should be confined to writings already in evidence. - The presiding judge wrote into the bill of exceptions:the following statement : "While the jury were deliberating on the case of the ,State .of Arkansas v. Willard . Hopkiiis, • and after the dame had been submitted to them, and after they had , been deliberating fer a considerable period of time, without having reached a verdict, one of their number, Mr. Will Mullens, as I understand his name, came to me and asked me if they could find the defendant guilty and recoMmend in their verdict that hii sentence be suspended during : the time he remained within the jurisdiction of the court and §upported his Widowed mother. :I told him they could , do this, but that it was not binding on the Court. This was in the absence Of the defendant, his counsel and the other jurors... Later in that day another member of the jury on this case, Mr. Eli'Turner; as I understood his name,*eathe to me and asked me pracL tically the same question that Mr. Mullens did, ' and I told him that they. could.' This was also in the absence
AKK1 HOPKINS' V. ST.ANE., .395 of . therdefendant,- his, counsel.; and. the other. members.,Of the jury. I further certify that; ,shartly thereafter,-the jury.brOught into open court akVerdictfinding the: defendant guilty of burglary and not guilty . of grandnarceny, with the recommendation An accordance t with :What -I told them . they tould do..?' . ;• ' The AttorheY 'General haa Virthallr 'caiifessed l thkt this pruceeding was eironeouS; and' g uch we' think it WaS. :In the ; case of fearson y: Stafe, 119 Ark 52, i78 § t . W. 914 'a . member of . the * jury addiess Ted ' the ' fellai;hn' note to the presiding judge,: "If ihe,:j,u.Ty ,shPulci the defendant guilty as ;charged in the indigtpient. ,with a Fecommendation for Jeniency, -has, your, gonor ;the anthor-ity and will you assess his punishment at twentyonc years in the State Penitentiary, , oi or; life , The !judge answered the above 'note . writing! thereon the .wo,rd "Na." ; When this , communication was had: betWeen .the :cdurt and . the jury,- neither the defendant nor-his attorneys were present, and they knew nothing about the incident. It was there said: "Therefore, treating , the exception as true, the court erred in communiCating -With the jurY'in the manner set up in this exception, in.the absence, of the . defendant and his counsel. This . inquiry on the part of , the jury and :the answer thereto by the ceillit'WaS ' ' t " antanionnt to giV-. Inginstructions. to the jury in , the abseuce of 'the defendant and his counsel. „ If the appellantdoriais counsel had been present, then they might have objected to the eaurt's anSwering the inquiry in any manner at all, and' they might have objected to the' ansWer that' the court ,gave. It is unnecessary to determine whether the answer was correct. In KinnOner v: State, 66 Ark. i206, 49 Si.' W. 815, the court re-read the instructions , to the jury in' the absence of the defendant exactly as at first :given-before the jury retired to consider of -their verdict. Of this procedure; we laid : .` The instructions)could not be re-read in his absence, for, although they were :read.:exactly as :at , first given, the , defendant ;had the right to , know: and see
tbat such was the case, and to be present for that purpose' " (citing authorities). . In the recent case of Wacaster v. State, 172 Ark. 983, .291 S. W. 85, it was said : "Section 3192, Crawford & Moses' Digest, provides how a jury, after it has retired • for deliVeration, shall acquire information on any point of law or about any part of the evidence, if there is a disagreement, that they must require the officer to conduct them into court, where the information required must be given in the presence of, or after notice to, the counsel of the parties. Its provisions are mandatory." See also Watuak and Vaught v. State, 170 Ark. 329, 279 S. W. 997, and Aydelotte v. State, 170 Ark. 1192, 281 S. W. 369. The court should not have charged the individual jurors as to the law of the case in the absence of the accused and his counsel, and, for this error, the judgment must be reversed, and the cause will be remanded for a new trial.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.