dissenting.
I cannot agree that on this record the State has produced substantial evidence that defendant’s fingerprint could only have been impressed on James Grindle’s truck at the time of the crime. This is not a case where defendant took the stand and denied that he was ever at the scene of the crime. See, State v. Miller, 289 N.C. 1, 220 S.E. 2d 572 (1975). In the present case, defendant did not testify. The court is not permitted to infer from defendant’s silence that his fingerprint could only have been impressed upon the mirror during the commission of the crime. State v. Scott, 296 N.C. 519, 251 S.E. 2d 414 (1979). Neither the court nor the jury may draw any inference from the election by the defendant not to testify in his own behalf. State v. Cutler, 271 N.C. 379, 156 S.E. 2d 679 (1967).
The only evidence in this case tending to show when the fingerprint could have been impressed was the testimony of James Grindle, the owner of the truck, that he had “never seen Mr. Strange before.” Mr. Grindle testified that the truck was unlocked the day it was stolen and nothing in the record indicates that the truck was ever locked. Both police officers who testified as expert witnesses on the fingerprint evidence could not give any opinion as to when the fingerprint was impressed on the mirror.
On its facts, this case is similar to State v. Scott, supra, in which the defendant was charged with murder and attempted robbery. There the defendant’s thumbprint was found on a metal box where the victim’s family kept its valuables. The victim’s niece, who lived with him, testified that the defendant had never been in the house. The court held that defendant’s motion to dismiss should have been allowed, because the niece worked outside the home five days per week and her testimony did not substantially exclude the possibility that defendant might have visited the house during the niece’s absence for some lawful or unlawful purpose in the weeks preceding the murder.
*268Similarly in the present case, the fact that Mr. Grindle had never seen the defendant does not constitute substantial evidence that defendant’s fingerprint could only have been imprinted on the mirror during the larceny of the truck. Mr. Grindle was in no position to personally know every time anyone entered his unlocked truck. There was no additional evidence of defendant’s guilt. See, State v. Jackson, 284 N.C. 321, 200 S.E. 2d 626 (1973); State v. Foster, 282 N.C. 189, 192 S.E. 2d 320 (1972).
In the light of all these facts, I am constrained to hold that the evidence was insufficient to withstand a motion to dismiss. The burden is not upon the defendant to explain the presence of his fingerprint but upon the State to prove his guilt. I must conclude that the evidence introduced in the present case “is sufficient to raise a strong suspicion of the defendant’s guilt but not sufficient ot remove that issue from the realm of suspicion and conjecture.” State v. Cutler, supra, at 383, 156 S.E. 2d 682. For the foregoing reasons the trial court should have allowed defendant’s motion to dismiss.