Defendant was charged with having burglarized the business office building occupied by the Mel Coombs Lumber Company at Piercy in Mendocino County. He was found guilty of burglary in the second degree, and following the denial of his motion for a new trial, judgment was pronounced on the verdict. He has appealed from the judgment and from the order denying his motion for a new trial.

Defendant based his appeal on the following contentions:

Before discussing these contentions we shall summarize briefly the evidence as shown by the record.

Upon his arrival at 8 a. m. on Wednesday, August 24, 1955, William Allman, office manager for the company, found the window near his desk partly opened, although it was his practice to close the windows each night. A strip of adhesive tape was on the window which had apparently been used to pull the window open sufficiently to permit entry of a hand which could then open the window. Adhesive tape was readily available in a nearby first-aid building which was kept open at all times. Another window showed marks of an unsuccessful attempt at entrance. Approximately $220 from a metal tobacco can which was kept in a desk drawer was discovered to be missing shortly before 1 p. m. that afternoon. Allman had counted the funds on the previous Saturday and had last seen the money on the previous afternoon when the defendant had been given a $10 advance. Fingerprints were found upon the window which indicated that the person had grasped the window as if to pull it open. The thumbprint found on the outside of the window proved to be that of the defendant. Although the prints on the inside could not be clearly identified in toto, a right index fingerprint was found to have nine points of similarity with that of the defendant. Ten points are usually held to be conclusive proof of identifications according to respondent. The window had been washed on Saturday, August 20, 1955, and no other prints were found thereon.

On Monday, August 22d, the defendant, who was then employed by the company, injured one of the fingers on his right hand, not the thumb or index finger, and came into the office where a temporary bandage was applied. Then Allman took him to the hospital and, upon his return, defendant received his paycheck. He was taken home and did not return to the mill until the afternoon of the next day when he came into the office and asked Allman for a $10 advance. The $10 was taken from among the currency in the metal tobacco can from which the remaining money was later stolen.

Allman testified that while defendant was in the office on Monday and on Tuesday, he was at his desk, which was one and a half feet from the window. At no time did he see the defendant place his hand upon the window or come near enough to do so although such action would have been evident to Allman had it occurred. The distance from the normal standing position upon the concrete porch outside of the window to the window was 70 inches. When defendant came into the office for the $10 advance he was never closer to the window than approximately 6 to 8 feet.

In explanation of his fingerprints defendant testified that while waiting for Mr. Coombs to sign his paycheck the injured hand was hurting and he held it up to alleviate the pain but was not sure that in so doing he had touched the window. Other evidence will be referred to hereinafter.

In support of his first contention defendant argues that the evidence shows that defendant was around this window while lawfully upon the premises of the company as an employee. He asserts that there is nothing to indicate that the defendant was in possession of anything that was taken from the building, and that the only evidence that could possibly connect him with the commission of the crime was the fact that he left the premises about the time of the burglary, that he gave inconsistent statements of his whereabouts, and the fingerprint found on the window. He states that there were some 66 employees who had access to this money. He argues further that the evidence is entirely circumstantial and that the law requires that it must be not only consistent with the hypothesis of guilt, but inconsistent with any other rational hypothesis.

Respondent in reply contends that there was ample evidence to support the jury’s verdict and points to the following evidence appearing in the record :

We are unable to agree with defendant’s contention that the evidence was insufficient to support the judgment. Defendant’s argument is merely an argument as to the weight of conflicting evidence, and the weight of the evidence was a question for the jury to determine. It is clear that there was ample evidence to support the verdict of the jury.

Defendant’s second contention that the court erred in limiting his right to examine prospective jurors to ascertain whether or not they were deputy sheriffs has substantial merit. The record shows that the trial court, in asking questions of the members of the jury panel collectively, asked the following questions:

The record shows that deputies of the sheriff’s office investigated the alleged crime and that the complaint was filed by a deputy sheriff. During the examination of one of the prospective jurors by defendant’s counsel, the following occurred:

Section 1078 of the Penal Code provides:

We believe that the court erred in refusing to permit defendant’s counsel to ask any of the prospective jurors if he was a deputy sheriff. The court did not ask that question and even if the court had asked such a question of the panel collectively, we believe that counsel for defendant should have been permitted to ask the question. While the purpose of said section 1078 was to expedite the examination of prospective jurors, it is stated in People v. Estorga, 206 Cal. 81 , at page 84 [ 273 P. 575 ] :

We think the correct rule is stated in the following quotation from Walker v. Greenberger, 63 Cal.App.2d 457 , at pages 463-464 [ 147 P.2d 105 ] :

While the mere fact that a prospective juror was a deputy sheriff would not of itself be a ground of challenge for cause, yet in a case where the sheriff’s office has investigated the alleged crime and the complaint was sworn to by a deputy sheriff, a defendant on trial should certainly be permitted to ask and have answered the question of whether or not the prospective juror is a deputy sheriff.

However, the record shows that no peremptory challenges were exercised by either the People or the defendant, and we do not believe that we would be justified upon the record here to hold that the ruling of the court was reversible error. Defendant was represented by able and experienced counsel, and it would not have been difficult for such counsel to have ascertained whether or not any prospective juror was a deputy sheriff in time to have exercised a peremptory challenge. The fact that defendant’s counsel exercised no peremptory challenges at all indicates that he did not believe any member of the jury panel was a deputy sheriff and the further fact that no affidavit that any of them were deputy sheriffs was filed in support of defendant’s motion for a new trial, strengthens us in the belief that defendant was not prejudiced by the court’s ruling.

The judgment and order are affirmed.

Van Dyke, P. J., and Peek, J., concurred.

Appellant’s petition for a hearing by the Supreme Court was denied June 27, 1956.