State v. Kelly

• Decision Date: 31 July 1958
• Docket Number: No. 34364,34364
• Parties: The STATE of Washington, Respondent, v. Ernest Milton KELLY, alias Joe E. Kelly, Appellant.
• Court: Washington Supreme Court

Page 676

52 Wn.2d 676

328 P.2d 362

The STATE of Washington, Respondent, v. Ernest Milton KELLY, alias Joe E. Kelly, Appellant.

No. 34364.

Supreme Court of Washington, Department 1.

July 31, 1958.

John Ranquet, Seattle, for appellant.

Charles O. Carroll, James J. Caplinger, Seattle, for respondent.

HUNTER, Justice.

Ernest Milton Kelly, alias Joe E. Kelly, was convicted of the crime of burglary in the second degree in the superior court of King county, on March 5, 1957. Thereafter, prior to imposition of judgment and sentence, the prosecuting attorney filed a supplemental information charging the defendant, under RCW 9.92.090, with being an habitual criminal. The supplemental information charged the defendant with having been previously convicted of robbery and grand larceny under the name of Joseph Kelly, in the superior court of Yakima county, Washington, on March 6, 1941, and the crime of assault in the first degree, under the name of Ernest Milton Kelly, alias Joe E. Kelly, in the superior court of King county, Washington, on December 22, 1944.

The defendant entered a plea of not guilty to the charge of being an habitual criminal. At the conclusion of the trial, the jury returned a verdict to the effect that the defendant had been convicted of the crimes charged in the supplemental information. After the defendant's motion for arrest of judgment or a new trial was denied, the trial court sentenced the defendant to life imprisonment. This appeal followed.

A charge of being an habitual criminal under RCW 9.92.090 does not constitute an offense in itself, but merely provides an increased punishment for the last offense. Williams v. Smith, 1946, 25 Wash.2d 273, 171 P.2d 197; State v. Johnson, 1938, 194 Wash. 438, 78 P.2d 561. In order to establish the status of an accused as an habitual criminal, it is necessary for the state to prove: (1) the prior judgments of convictions; (2) that the person named therein is the same person on trial. State v. Harkness, 1939, 1 Wash.2d 530, 96 P.2d 460.

Although the legislature, in this state, has not by statute prescribed the exact procedure to be followed in an habitual criminal proceeding, a proceeding has developed through the years by reason of the decisions of this court on the subject. Some of these cases, among others, are: State v. Johnson, 1938, 194 Wash. 438, 78 P.2d 561; State v. Courser, 1939, 199 Wash. 559, 92 P.2d 264; State v. Harkness, 1939, 1 Wash.2d 530, 96 [328 P.2d 364] P.2d 460; State v. Domanski, 1941, 9 Wash.2d 519, 115 P.2d 729; State v. O'Dell, 1955, 46 Wash.2d 206, 279 P.2d 1087.

The procedure followed by the respondent to establish the appellant's status as an habitual criminal was as follows:

Records of the Washington state penitentiary were introduced and admitted, over objection, as exhibits No. 30 and No. 31, for the purpose of establishing the identity of the appellant as the individual convicted of the crimes charged in the supplemental information. Each exhibit consisted of (1) a certificate of B. J. Rhay, the warden of the Washington state penitentiary; (2) a certificate of Judge Albert N. Bradford, superior court of Walla Walla county, Washington; (3) a photograph; (4) fingerprint record; (5) a copy of a sentence and judgment of the proper superior court in this state; and, (6) a copy of the warrant of commitment. The judgments and sentences in the exhibit were admitted with the understanding that properly certified copies of the judgments would be introduced and admitted into evidence later in the proceding. These certified copies were later admitted as exhibits No. 28 and No. 29 to prove the convictions. A fingerprint expert, who had taken the appellant's fingerprints prior to trial, testified that he compared these prints with the prints in the certified copies of the prison records and that they were made by the same man.

Appellant contends the trial court erred in admitting in evidence, over his objection, exhibits No. 30 and No. 31, and that without these exhibits the respondent failed to prove the required identity to establish his status as an habitual criminal. In view of the fact that the argument of the appellant against specific documents in each exhibit is the same, we need only concern ourselves with one of the exhibits, which we will hereinafter refer to as exhibit No. 31.

First, in reference to the entire exhibit, the appellant contends that the certificate of Judge Bradford certifying the signature of the warden lacks the seal of the court and, therefore, renders the exhibit inadmissible for failure to comply with Rule of Pleading, Practice, and Procedure 38, 34A Wash.2d 103, which provides:

'(1) Authentication of Copy. 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. If the office in which the record is kept is within the United States or within a territory or insular possession subject to the dominion of the United States, the certificate may be made by a judge of a court of record of the district or political subdivision in which the record is kept, authenticated by the seal of the court, or may be made by any public officer having a seal of office and having official duties in the district or political subdivision in which the record is kept, authenticated by the seal of his office. If the office in which the record is kept is in a foreign state or country, the certificate may be made by a secretary of embassy or legation, consul general, consul, vice-consul, or consular agent or by any officer in the foreign service of the United States stationed in the foreign state or country in which the record is kept, and authenticated by the seal of his office.

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'(3) Other Proof. This rule does not prevent the proof of official records or of entry or lack of entry therein by any method authorized by an applicable statute, or by the rules of evidence at common law.' (Italics ours.)

The italicized portion of subsection (3) is controlling in this case. The applicable statute in this case is RCW 5.44.040, Rem.Rev.Stat. § 1257, which provides as follows:

'Certified copies of public records as evidence. Copies of all records and documents on record or on file in the offices of the various departments of the United States and of this state, when duly certified by the respective officers having by law the custody thereof, under their respective seals where such officers have official seals, shall be admitted in evidence in the courts of this state.' (Italics ours.)

Under RCW 72.08.040, it is the duty of the superintendent of the state penitentiary

'(2) To supervise the government, discipline, and police of the penitentiary, and to enforce all orders and regulations of the department in respect to the penitentiary. He shall keep a registry of the convicts, in which shall be entered the name of each convict, the crime of which he was convicted, the period of his sentence, from what county and by what court sentenced, his nativity, to what degree educated, an accurate description of his person, and whether he has previously been confined in a prison in this or any other state, and if so where, and how he was discharged.' (Italics ours.)

Therefore, the warden of the Washington state penitentiary, who is by law the proper custodian of the prison records, may certify such record under RCW 5.44.040 and when so certified, it shall be received in evidence in an habitual criminal proceeding.

This court may take judicial notice of the official roster of state and county officers compiled in the office of the secretary of state and from this we learn that B. J. Rhay is the superintendent of the Washington state penitentiary....