Higgins v. State
| Decision Date | 28 May 1962 |
| Docket Number | No. 5034,5034 |
| Citation | 235 Ark. 153,357 S.W.2d 499 |
| Parties | Lawrence John HIGGINS, Appellant, v. STATE of Arkansas, Appellee. |
| Court | Arkansas Supreme Court |
Jeff Duty, Rogers, for appellant.
Frank Holt, Atty. Gen., by Milas H. Hale, Asst. Atty. Gen., Little Rock, for appellee.
Appellant, Lawrence John Higgins, was charged by Information with the crimes of burglary and grand larceny, the Information alleging that appellant burglarized the Western Auto Store in Bentonville, Arkansas. The Information also charged Higgins with being an habitual criminal, alleging that he had previously been convicted of three separate felonies and had served a sentence in a penitentiary on each of said convictions. On trial, the jury returned the following verdict:
'We the Jury find the defendant, Lawrence John Higgins, guilty of Burglary and fix his punishment at 15 years consecutively in State Penitentiary.
'We the Jury find Lawrence John Higgins guilty of Grand Larceny and fix his punishment at 15 years consecutively in State Penitentiary.'
From the judgment entered in conformity with this verdict, appellant brings this appeal.
For reversal, it is first asserted that the court erred in permitting introduction of State's exhibit #8. This exhibit, which was admitted over the objections and exceptions of appellant, is a copy of the criminal record of Lawrence Higgins, and includes all of the arrests and convictions of appellant from the year 1935 to the present time. In admitting the exhibit, the court did not permit the jury to look at the record itself (apparently because it showed the number of arrests, as well as the number of convictions), but did permit the prosecuting attorney to read into evidence those portions relating to appellant's convictions. The admitted portion reads as follows:
'UNITED STATES (SEAL 1) OF AMERICA
FEDERAL BUREAU OF INVESTIGATION
'In accordance with Title 28, Section 1733, U. S. Code, I hereby certify that the annexed paper is a true copy of the original record and fingerprints in the Identification Division of this Bureau, of LAWRENCE HIGGINS (ALSO KNOWN AS LAWRENCE JOHN HIGGINS) FBI number 1 146 464.
'In Witness Whereof, I have hereunto set my hand and caused the seal of the Federal Bureau of Investigation to be affixed, on the day and year first above written.
/s/ A. K. Bowles
A. K. Bowles
Identification Division 'Contributor of fingerprints: State Reformatory, Monroe, Washington; Name and number, Lawrence John Higgins, #9810; Arrested or received, October 10, 1936; Charge, grand larceny; Disposition, not more than 15 years; 5 years board action. June 21, 1944, final discharge from parole.
'Contributor of fingerprints, United States Marshal, Abilene, Texas; Name and number, Larry J. Higgins, #1497; Arrested or received, January 30, 1956; Charge, Dyer Act; Disposition, March 22, 1956, 2 years.
'Contributor of fingerprints, United States Penitentiary, Leavenworth, Kansas; Name and number, Lawrence John Higgins, #75012; Arrested or received, November 12, 1957; Charge, Motor Vehicle Theft Act; Disposition, 3 years, December 30, 1959, mandatory release.'
The authority for offering this evidence is contained in Section 43-2330, Ark.Stats. (1961 Supp.), and reads as follows:
'The duly certified copy of the record of a former conviction and judgment of any court of record for imprisonment in the penitentiary against the person indicated or the certificate of the warden or other chief officer of any penitentiary of this State or any other State in the United States, or the Federal Government or of any foreign country, or of the chief custodian of the records of the United States Department of Justice, containing the name and the fingerprints of the person imprisoned as they appear in the records of his office shall be prima facie evidence on the trial of any person for a second and subsequent offense, of the conviction and judgment of imprisonment in the penitentiary and may be used in evidence against such person.'
This section is a part of the 'Habitual Criminal Act' (Act 228 of 1953, as amended in 1961), which provides a greater penalty for those defendants who have been previously convicted of felonies. 2 Appellant contends that the court erred in admitting this exhibit, since it is not signed by anyone claiming the title of 'Chief Custodian of the Records of the United States Department of Justice', but rather, the signer is only identified as an 'Inspector, Identification Division'. We think there is merit in this contention.
Since the statute authorizing a more severe punishment for one who has been previously convicted, is highly penal, it must be strictly construed. U. S. v. Lindquist, et al., D.C., 285 F. 447; State v. Bailey, 165 La. 341, 115 So. 613, 58 A.L.R 1. There is here no showing that A. K. Bowles, Inspector, Identification Division, is the chief custodian of the records of the United States Department of Justice. In Mullican v. United States, 252 F.2d 398, 70 A.L.R.2d 1217 (U. S. Court of Appeals, 5th Circuit), it was urged by the appellant that certain exhibits offered by the Government constituted error requiring a reversal. The Court quoted from the Federal Rules as follows:
'An official record or an entry therein, when admissible for any purpose, may be evidenced by an official publication thereof or by a copy attested by the officer having the legal custody of the record, or by his deputy, and accompanied with a certificate that such officer has the custody. * * *' Fed.Rules Civ.Proc. rule 44, 28 U.S.C.A.
Relative to one of the exhibits, the Court then said:
'Government Exhibit 4 consisted of photostatic copies of a Certificate of Parole issued to Mullican in December 1954, at which time he was an inmate of Texarkana, an Order of Revocation of the Parole, a Warrant for his return to Texarkana and a Marshal's return showing the delivery pursuant to the Warrant of Mullican to Texarkana on May 18, 1956. These were certified as being exact copies of official documents issued by the United States Board of Parole. The certificate was signed by the Chairman of the Board of Parole, and in this form:
Acting Parole Executive.'
We might here point out that we do not think it was the intent of the Legislature in passing Act 228 of 1953 (§ 43-2330, 1961 Supp.), to permit the introduction of a certified copy of the records of the United States Department of Justice, even though properly certified by the Chief Custodian of the Records, in instances where the prisoner's sentence was served in a state prison. Rather, we are of the opinion that the language of that section requires the certificate of the warden or the chief officer of the state penitentiary wherein the accused had previously served time. The records of the United States Department of Justice, properly certified, could appropriately be offered where the accused had served time in a federal prison or reformatory. When a man is arrested and charged with crime in this state, under the usual procedure, he is fingerprinted, and a copy of the prints sent to the Department of Justice in Washington. That department then sends back to the arresting officers a copy of the defendant's record, if any, which shows both previous arrests and convictions. If the prosecuting officials of that county desire to charge the defendant with being an habitual criminal, and to invoke the penalties of the Habitual Criminal Act, it is only necessary that they write the warden or other chief officer of the institution where he served time, and request a certificate that the defendant served a sentence in that prison (giving dates and charge convicted of, along with copy of fingerprints). Of course, the record is hearsay evidence (made admissible by the Legislative Act), but under this procedure, it is, at least, hearsay 'at first hand', whereas, when a certified copy of a record is obtained from the Department of Justice, it is hearsay 'once removed', since the department acquired its information from the state authorities. 3 We think, unquestionably, that the introduction of a prior record carries great weight with a jury, and the statute permitting this type of evidence should be strictly complied with. 4
Appellant also complains that the exhibit is...
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