State v. Johnson, 26861.

• Decision Date: 19 April 1938
• Docket Number: 26861.
• Citation: 78 P.2d 561,194 Wash. 438
• Parties: STATE v. JOHNSON.
• Court: Washington Supreme Court

78 P.2d 561

194 Wash. 438

STATE v. JOHNSON.

No. 26861.

Supreme Court of Washington

April 19, 1938

Department 1.

Appeal from Superior Court, King County; Howard M. Findley, Judge.

Harry Johnson was convicted on a charge of being an habitual criminal, and he appeals.

Affirmed.

Andrew L. Ulvestad, of Seattle, for appellant.

B. Gray Warner and Harry A. Bowen, both of Seattle, for the State.

SIMPSON Justice.

February 4, 1937, defendant, Harry Johnson, was convicted in the superior court of King county of the crime of burglary in the second degree.

Before judgment and sentence were imposed, a supplementary information was filed charging him, under Rem.Rev.Stat., § 2286, with being an habitual criminal. The supplemental information charged defendant with having been previously convicted of grand larceny in the superior court for the county of Los Angeles in California, June 4, 1925 and of the crime of knowingly uttering and publishing a forged bank check in a circuit court for Jackson county in the state of Oregon, January 24, 1930.

Defendant pleaded not guilty to the charge of being an habitual criminal. He was tried by a jury, found guilty, and sentenced to life imprisonment. From that judgment he has appealed.

The charge of being an habitual criminal does not constitute an offense in itself, but merely provides an increased punishment for the last offense. State v. Le Pitre, 54 Wash. 166, 103 P. 27, 18 Ann.Cas. 922.

The method pursued by the State to prove the crime of burglary and to show prior convictions was as follows: Certified copies of the judgments of conviction and sentence entered in the courts of Washington, California, and Oregon were introduced. Then an expert witness on fingerprints was called who testified that he had seen the appellant in the King county jail and took his fingerprints there June 6, 1936. The witness was then shown copies of fingerprint records certified by the wardens of California and Oregon penitentiaries to be true copies of original fingerprint records of the defendant named in the Oregon and California judgments. Upon examining the copies of the fingerprint records, and comparing them with the known prints of appellant, the witness testified that the fingerprints which he had taken and the prints in the certified copies of the records of the person named in the judgments were made by the same man. The certificate of the warden, omitting formal parts, was:

'* * * I am keeper and custodian of fingerprint and photographic records of persons convicted of crime and imprisoned in said prison, and that the said fingerprint and photographic records are kept by me on my files in conformity with the law.

'I further certify that the annexed is a true copy of an original fingerprint and photographic record now on file in this prison; that I have compared the transcript hereto annexed with the said original records, and I certify that the same is a true and correct transcript of the said original record and of the whole thereof. * * *'

Then follows in this certificate a statement that the one whose fingerprint record was certified was the same person who was named in the California and Oregon judgments admitted in evidence in this case.

There was attached to the warden's certificate the judge's certificate which, following the name of the warden, so far as pertinent, was as follows: '* * * Is the Warden at the above mentioned Prison and hath the keeping and custody of the finger prints, photographs, files and records of the said Prison; that he is by law the proper officer to make out and certify and attest copies of finger prints, photographs, files and records of said Prison; that full faith and credit are and ought to be given to his acts and attestations done as aforesaid, and that his certificate of attestation to the finger prints and photograph hereto annexed is in due form; that he was such Warden, Custodian and Keeper at the time of making and subscribing to the foregoing attestation and certificate.'

A certificate was attached by the clerk to the effect that the one who signed the last certificate was a judge, and the presiding judge certified to the identity of the clerk. These documents bear the seal of the court from which they emanated. The certificates of the officials in both states were essentially the same.

Introduction of the copies of the certified records in evidence was objected to by appellant, and their admission is urged as error.

During the consideration of this case we have in mind the following provisions of Rem.Rev.Stat. § 2152: 'The rules of evidence in civil actions, so far as practicable, shall be applied to criminal prosecutions.'

The introduction of the certified copies of judgments of convictions in the courts of California and Oregon was proper, and in accordance with the provisions of Rem.Rev.Stat. § 1254. State v. Rowan, 84 Wash. 158, 146 P. 374; Allard v. La Plain, 147 Wash. 497, 266 P. 688.

Identification of individuals by means of comparison of fingerprints is generally accepted in this and other states. State v. Bolen, 142 Wash. 653, 254 P. 445, 449; State v. Witzell, 175 Wash. 146, 26 P.2d 1049; Peoplem v. Sallow, 100 Misc. 447, 165 N.Y.S. 915; Stacy v. State, 49 Okl.Cr. 154, 292 P. 885; People v. Les, 267 Mich. 648, 255 N.W. 407; Piquett v. United States, 7 Cir., 81 F.2d 75; Id., 298 U.S. 664, 56 S.Ct. 749, 80 L.Ed. 1388.

The essential questions to be determined are: May the jdentity of the appellant be proved by the introduction of copies of fingerprints certified to be such by the wardens of the penitentiaries of California and Oregon, and may this be done by following the federal statute which puts into effect the full faith and credit provision of our National Constitution?

Although our statutes, Rem.Rev.Stat. §§ 1257 and 1260, do not directly provide for the admissibility of public records from sister states, provision has been made for their proof and admission by congressional enactment.

Article 4, § 1 of the United States Constitution, provides: 'Full Faith and Credit shall be given in each State to the Public Acts, Records, and Judicial Proceedings of every other State. And the Congress may by general Laws prescribe the Manner in which such Acts, Records, and Proceedings shall be proved, and the effect thereof.'

In compliance with this article the Congress has prescribed in the following statute the manner in which public records, other than judicial proceedings, shall be proved: 'All records and exemplifications of books, which may be kept in any public office of any State or Territory, or of any country subject to the jurisdiction of the United States, not appertaining to a court, shall be proved or admitted in any court or office in any other State or Territory, or in any such country, by the attestation of the keeper of the said records or books, and the seal of his office annexed, if there be a seal, together with a certificate of the presiding justice of the court of the county, parish, or district in which such office may be kept, or of the governor, or secretary of state, the chancellor or keeper of the great seal, of the State, or Territory, or country, that the said attestation is in due form, and by the proper officers. If the said certificate is given by the presiding justice of a court, it shall be further authenticated by the clerk or prothonotary of the said court, who shall certify, under his hand and the seal of his office, that the said presiding justice is duly commissioned and qualified; or, if given by such governor, secretary, chancellor, or keeper of the great seal, it shall be under the great seal of the State, Territory, or country aforesaid in which it is made. And the said records and exemplifications, so authenticated, shall have such faith and credit given to them in every court and office within the United States as they have by law or usage in the courts or offices of the State, Territory, or country, as aforesaid, from which they are taken.' 28 U.S.C.A. § 688, Rev.St. § 906.

The courts of California and Oregon have approved the introduction in evidence of copies of fingerprints for the purpose of identifying individuals accused of crime. State v. Smith, 128 Or. 515, 273 P. 323; People v. Purcell, Cal.App., 70 P.2d 706.

As we have related in the present case, the State, in attempting to prove the identity of the individual convicted in the other states, followed exactly the procedure set forth by Congress.

In James v. James, 35 Wash. 650, 77 P. 1080, 1082, where the defendant attempted to prove his right to some property as an heir at law by offering adoption papers which were copies of foreign records, indorsed on the back as recorded, but not under the formal seal of the officers, the court said: 'A record from a public office of a sister state is not admissible in evidence on the mere certificate of the keeper of the record, over his hand and official seal. Only records from the public offices of this state or of the United States are so admissible. Records from public offices of sister states, other than courts, must be certified in accordance with the United States states to be admissible in evidence in the courts of this state.'

In the case of State v. Kniffen, 44 Wash. 485, 87 P. 837 838, 120 Am.St.Rep. 1009, 12 Ann.Cas. 113, the trial court received in evidence a marriage license and certificate of marriage from the state of Michigan, purporting to be a copy of the records of Bay county, Mich., showing the marriage of Bert Kniffen and Mrs. Nellie Nickelson. In passing upon the question of the admissibility of the record, we said: 'The license and marriage certificates do not appear to be the record or proceeding of any court of the state of Michigan which,...