¶1The opinion of the court was delivered by
¶2The defendant was indicted and tried for burglary in entering the home of Senator Ackerman, in Plain-held, on the evening of January 3d, 1914, and removing there*420from jewelry of the value of about $17,000. The only evidence of the crime obtainable by the state consisted in certain circumstantial facts. It was first attempted to be shown that the defendant was in Plainfield with two other men on the day of the crime. It .was next shown that the burglar left certain traces of his fingers on the balcony post leading from the second story of the house where the articles of jewelry were kept, which finger prints correspond with finger impressions made by defendant at tire request of an expert for the state, after the defendant had been extradited for the crime from Chicago. It was finally contended that with the charge of this crime staring him in tire face, the defendant failed to take the witness-stand and acquit himself of any connection with it.
¶3These facts made up the state’s case and the case was sent to the jury without any substantive proof upon defendant’s part.
¶4We are asked to reverse the conviction of guilt upon many grounds, the most -of which related to matters of procedure at the trial, and exceptions to the charge of the court. The two most serious questions in the case are those presenting the propriety of the admission of testimony concerning the finger prints and the reference by the court to the defendant’s failure to testify. The admission of the photographs of the finger prints upon the column of the house was proper under the proof. 2 Rice Ev. 1163.
¶5We think the objection to the finger-print testimony is practically and conclusively dealt with by-the Court of Errors and Appeals in State v. Cerciello, 86 N. J. L. 309.
¶6The same question was dealt with by the Court of Errors and'Appeals in State v. Miller, 71 N. J. L. 528.
¶7Of course, the circumstances in the different cases as they arise cannot be expected to be alike, but the principle of law once settled, as we conceive it to be by the decisions referred to, determines the legal propriety of admitting testimony of the same general character.
¶8We think it was competent, therefore, to admit a facsimile impression of the finger prints upon the post, for the purpose *421of comparison with an actual impression of the defendant’s finger prints taken for the purpose of comparison, as a means of eliciting a fact, viz., that the fingers in each instance were the same.
¶9Whether or not they were the same presented a question of fact for the jury to determine, in view of all the circumstances and the light thrown upon them by experts in that art.
¶10It was not for the court to determine as a matter of lav/ that this testimony was useless and valueless in the examination of a legal inquiry which presented very little direct testimony upon the corpus delicti.
¶11There was testimony in the case from which the jury might conclude that the defendant was in Plainfield with others on the day of the commission of the crime. The case thus presented was one of circumstantial evidence, but, standing upon those facts alone, there was sufficient proof, if the jury believed it. to warrant the conviction. This was accentuated by the defendant’s failure to testify in his own behalf.
¶12The trial court referring to that aspect of the case 'instructed the jury that the defendant’s failure to testify in the face of the testimony adduced, by the state, tending to incriminate him, “’may be taken into consideration by you along with the other testimony in the case in arriving at your verdict.”
¶13The court further instructed the jury that the defendant was not legally obliged to testify in behalf of himself. The defendant cites Parker v. State, 61 N. J. L. 308, and State v. Wines, 65 Id. 31, as authorities which uphold the failure of the defendant to take the stand in his own behalf as a right which cannot legally be the subject of comment or allusion by the trial court.
¶14We think that whatever doubt existed as to the propriety of such a reference by the trial court, in a case dependent entirely upon the weight and value of circumstantial evidence, has been set at rest by the Court of Errors and Appeals in the case of State v. Callahan, 77 N. J. L. 685. In that case it was held, in an opinion by Mr. Justice Swayze, “that where the defendant fails to testify in his own behalf to deny inculpatory *422facts which if false, he must know to be so, it is proper for the trial judge to call attention to his failure to so testify.”
¶15We think that statement of the law presents the situation in the ease at bar. It was competent for defendant to deny his presence in Plainfield upon the day of the burglary, an incriminating factor of importance in the chain of evidence against him. His failure to do so left it open to the court under the Callahan ease to refer to the fact as a proper subject for consideration by the jury in weighing the probabilities presented by the facts.
¶16Our examination of the remaining exceptions presented by the record has convinced us that they are without merit.
¶17The judgment of conviction will therefore be affirmed.