(dissenting). I agree that the judgment must be vacated, and add that I consider the other errors referred to equally fatal to the conviction notwithstanding the failure of counsel to make timely objection thereto at trial.* Because of *517my view of the fingerprint evidence, however, I would discharge the defendant.
The only competent evidence offered to prove defendant’s guilt is a fingerprint, taken from a piece of broken glass, which was proved by comparison to be that of defendant. The glass bore other unidentified fingerprints. It came from a door which was not the point of unlawful entry, although damaged during the same night as the burglary, which was accessible to the public.
The general proposition stated by the annotator in 28 ALR 2d, pp 1150 and 1154, is that a fingerprint found at the scene of a crime is sufficient to convict if the circumstances prove the print' could only have been impressed at the time the crime was committed. The statement is merely a particularization of the view taken of circumstantial evidence generally,- — -namely, that it must be such as to exclude every reasonable hypothesis except that of guilt in order to warrant a conviction. See People v. Sessions (1886), 58 Mich 594, 606:
“In criminal cases not only must each of the facts from which the inference is drawn be proved beyond any reasonable doubt, but the inference itself must be such as admits of no other rational conclusion.”
The existence of a fingerprint on a given object or in a given place proves only that the person identified by the fingerprint at some time touched the object or was at the particular place. The cases annotated in the ALE reference above deal not alone with the adequacy of fingerprints to establish identity, but with the circumstances under which an inference of guilt is permissible from such proof that the accused had been, at some time, at the place *518where the crime was committed. Circumstances bearing on access and the time when the print could have been impressed are not merely relevant, but must, in toto, admit of no other rational conclusion than that the presence demonstrated by the fingerprint was at the time of the commission of the offense.
In People v. Harris (1960), 358 Mich 646, the fingerprint of the accused on a sack containing marijuana found in another’s apartment was held insufficient to sustain a conviction. In People v. Les (1934) 267 Mich 648, defendant’s palmprint on the windowsill where an unlawful entry was made into a private home was considered. The opinion dealt at length with the technical aspects of palmprint identification and found it trustworthy. The opinion did not review such proof other than in terms of admissibility, but concluded, without discussion, that it was there sufficient for an examining magistrate to find probable cause and bind over the defendant for trial. Apart from distinctions between probable cause to hold for trial and proof of guilt beyond a reasonable doubt, the case at hand involves substantially different facts than did Les, supra. Here we have a public bar; in Les, a private home. The back door of the “D” bar was a place accessible to and frequented by the public; the rear bedroom window of a private home was not. And that window, in Les, was the point of unlawful entry, while the entry here was not made at the point where the fingerprint was found. Having proved that defendant had at some time touched the window of the bad?: door of the “D” bar, along with other unidentified persons whose prints were found on the broken glass, can it be said that the only rational conclusion permissible is that her print could only have been placed on the exterior side of the glass between 3:30 and 7:00 a.m. of June 10, 1965, or was placed *519on the glass in moving it after it was broken in those hours, and that this was done incident to an attempted unlawful entry which was successfully accomplished at a different point? I cannot arrive at such a conclusion, excluding every other reasonable hypothesis consistent with these facts. I do not believe the jury should have been permitted to do so. See McGarry v. State (1918), 82 Tex Crim 597 (200 SW 527); Graves v. State (1931), 119 Tex Crim 68 (43 SW2d 953); Weathered v. State (1932), 119 Tex Crim 90 (46 SW2d 701); Anthony v. State (1951), 85 Ga App 119 (68 SE2d 150); State v. Minton (19-48), 228 NC 518 (46 SE2d 296); and McLain v. State (1945), 198 Miss 831 (24 So 2d 15).
The errors essentially involved a hearsay abuse, analogous to that in People v. Thomas (1960), 359 Mich 251, and Douglas v. Alabama (1965), 380 US 415 (85 S Ct 1074, 13 L Ed 2d 934). It is not a novel proposition to require the trial judge to act without prompting of counsel in matters important to the possible outcome *517of the trial, and error unchallenged is not waived in such cases; e. g., People v. Nawrocki (1965), 376 Mich 252; People v. George (1965), 375 Mich 262.