dissenting:
I am unable to agree with the conclusion reached by the majority. While it is true, as stated in People v. Palmer (1964), 31 Ill. 2d 58, 198 N.E.2d 839, that burglary may be proved by circumstantial evidence and inferences derived therefrom, the court in People v. Marino (1970), 44 Ill. 2d 562, 256 N.E.2d 770, established the requirement that the proof of circumstances must be of a conclusive nature, leading to a satisfactory conclusion and producing a reasonable and moral certainty that the accused and no one else committed the crime. Further, as recognized by the majority opinion, a conviction cannot stand if the proof supports any reasonable theory of a defendant’s innocence. People v. Huff (1963), 29 Ill. 2d 315, 194 N.E.2d 230; People v. Wilson (1948), 400 Ill. 461, 81 N.E.2d 211.
Applying the foregoing principles to the instant cause, I am of the opinion that the State has failed to prove defendant guilty of the offense of burglary beyond a reasonable doubt. Here the State sought to establish defendant’s guilt based on a double inference. First, that defendant’s fingerprints on the piece of glass found near the kitchen door of Gurley’s house indicated that he made an unauthorized entry on the day in question. Secondly, that the evidence of the ransacked room showed that he entered the building with the requisite criminal intent to complete the offense. However, I believe that the State has failed in its proof of the first element, unauthorized entry.
The only evidence which circumstantially proved that defendant entered Gurley’s home as charged was the two fingerprints lifted from a piece of glass which was found near the kitchen door. However, the testimony presented was that several pieces of broken glass were scattered about the porch near the kitchen door and outside the house beneath the broken storm window. There is nothing in the record to indicate that any comparison of the types of glass was made or attempted in order to show the origin of the fragment of glass upon which defendant’s fingerprints were discovered. I also note that defendant’s fingerprints were found on only one side of the piece of glass and that it was not shown on which side. These facts seem to negate the prosecutor’s assertion in closing argument that the only way the fingerprints could be impressed on the fragment would have been by defendant’s act of picking the glass out of the window and dropping it to the floor. I find this theory difficult to accept where defendant’s fingerprints were not found on both sides of the glass fragment.
I am aware of the rule that an accused’s fingerprint found in the place where the crime was committed, or in the immediate vicinity, may be sufficient proof of identity as to sustain a conviction where the fingerprint could have been impressed only at the time the crime was committed. (People v. Donahue (1977), 50 Ill. App. 3d 392, 365 N.E.2d 710; People v. Reno (1975), 32 Ill. App. 3d 754, 336 N.E.2d 36.) In certain instances, evidence of the particular location of the fingerprints satisfies this requirement, as does the State’s proof of the chain of contact of the touched article which would show that the article could have been touched only at the time of the crime. (See People v. Reno.) However, in this cause, circumstantial evidence that the defendant was probably at the location at some time in the past does not prove beyond a reasonable doubt that defendant made the fingerprint impressions at the time Gurley’s windows were broken. The State’s evidence did not rule out the possibility that the impression was made at another time. In People v. Donahue, the accused’s “unexplained fingerprint” found on a steam iron which had been used as a murder weapon was held to be insufficient proof that the accused and no one else committed the crime where there was testimony by the victim’s sister that a man resembling the accused had been entertained by the victim in her home approximately one week prior to the murder.
There was no evidence in the instant case which would tend to show that defendant lawfully had been in or near Gurley’s house prior to the breakin. Gurley’s testimony did not rule out such a possibility, and defendant did not allude to the subject during his testimony. Citing People v. Morgan (1976), 44 Ill. App. 3d 459, 358 N.E.2d 280, the State asserts that it is relevant that defendant has at no time put forth a plausible alternative theory as to how his fingerprints came to rest on the particular piece of glass when confronted with the evidence that he lived a few blocks from Gurley’s house. This failure of defendant to explain the presence of his fingerprints was alluded to by the majority in their conclusion that there was sufficient proof of defendant’s guilt.
The circumstantial evidence, which this court found sufficient to sustain defendant’s conviction, in Morgan also included an implied admission by defendant affording a permissible inference of guilt. No such inference exists in this cause. Further, the instant defendant was not obligated to explain the existence of his fingerprints. (See Borum v. United States (D.C. Cir. 1967), 380 F.2d 595.) To the contrary, the State was required to “rely on the reliability of its own evidence and not the unreliability of defendant’s.” People v. Holsapple (1975), 30 Ill. App. 3d 976, 990, 333 N.E.2d 683.
I believe the case at bar evinces an attempt by the State to improperly shift the burden to defendant to explain the presence of his fingerprints where no inference of guilt exists as it did in Morgan. In my opinion, the State failed to sufficiently establish that the piece of glass on which defendant’s fingerprints were found was a fragment of the broken kitchen door window rather than of the porch storm window. Also, there was no evidence that the broken glass could have been touched only at the time of the crime as in Reno or that defendant was not lawfully in or near Gurley’s house prior to the breakin as in Donahue.
In view of the fact that the fingerprints were found on only one side of the glass fragment, it is necessary to determine whether the fragment came from the window of the kitchen door or the broken storm window. The presence of defendant’s prints on the storm window on the outside of the house would not necessarily establish that he made an unauthorized entry into the house on the day in question.
Accordingly, it is my opinion that the facts proved are not consistent only with defendant’s guilt but are also consistent with other reasonable hypotheses of innocence. Therefore, the proof was not of such a conclusive nature and tendency, leading, on the whole, to a satisfactory conclusion and producing a reasonable and moral certainty that the accused and no one else committed the crime.
For the reasons stated, I would reverse the judgment of the Circuit Court of St. Clair County.