State v. Kimbrough

• Decision Date: 12 November 1942
• Docket Number: 38045
• Citation: 166 S.W.2d 1077,350 Mo. 609
• Parties: State v. Olen Kimbrough, Appellant
• Court: Missouri Supreme Court

166 S.W.2d 1077

350 Mo. 609

State v. Olen Kimbrough, Appellant

No. 38045

Supreme Court of Missouri

November 12, 1942

Rehearing Denied January 4, 1943.

Appeal from Lawrence Circuit Court; Hon. Emory E. Smith Judge.

Affirmed.

Ruark & Ruark and G. D. Long for appellant.

(1) The laws of another state showing that the officer certifying was required to keep such a record must be shown. Florsheim v. Fry, 109 Mo.App. 487; Brewing Co. v. Smith, 59 Mo.App. 476; State v. Pagels, 92 Mo. 300; State v. Warren, 297 S.W. 397; 22 C. J., p. 835 sec. 975; St. Louis v. Blast Furnace Co., 235 Mo. 1. (2) The court here may not take judicial knowledge of the statute laws of another state, even for the purpose of the full faith and credit clause of the Constitution. Norman v. Insurance Co., 237 Mo. 576. (3) The authentication is also bad as having been made by the deputy district clerk rather than by the clerk of the court in person. 22 C. J., p. 845, sec. 100; Williams v. Williams, 53 Mo.App. 617; State v. Foreman, 121 Mo.App. 502; McDonald v. Insurance Co., 64 S.W.2d 748. (4) The judgment of conviction is not authenticated as required by the federal statute nor by our own statute. Sec. 1864, R. S. 1939. (5) The certificate of both judge and clerk must show that they are officers of the court where the judgment was rendered. 22 C. J., sec. 1004, p. 847; Barlow v. Steel, 65 Mo. 611; Moyer v. Lyon, 38 Mo.App. 635; Mauritz v. Schwind, 101 S.W.2d 1085. (6) An authenticated copy of a copy is not admissible. 22 C. J., p. 826, sec. 948. (7) The jury has a right to disregard the evidence of a former conviction and find the defendant guilty of grand larceny alone. State v. McBride, 68 S.W.2d 688, 334 Mo. 890; State v. Sumpter, 73 S.W.2d 760, 335 Mo. 620; State v. Hefflin, 89 S.W.2d 688, 338 Mo. 236; State v. Murphy, 133 S.W.2d 398, 345 Mo. 350; State v. Held, 148 S.W.2d 508. (8) And this is true although the defendant may in open court admit the former conviction. State v. Bresse, 33 S.W.2d 919, 326 Mo. 885; State v. Cardwell, 60 S.W.2d 28, 332 Mo. 790. (9) Where, as here, a defendant is charged under the Habitual Criminal Act, and where, under the instructions, the jury must either assess the increased punishment as a second offender or acquit, it is error for the court to fail to submit by instruction that the jury may find the defendant guilty of the crime charged alone. State v. McBroom, 238 Mo. 495; State v. English, 308 Mo. 695; State v. Cardwell, 60 S.W.2d 28, 332 Mo. 790. (10) In the latter case it is said that it would be the better practice to submit prior conviction distinct from guilt or innocence of the crime charged, so that it will be shown that the jury passed upon each proposition. State v. McBroom and State v. Cardwell are both cited, with approval in State v. Hamilton, 102 S.W.2d 642, l. c. 647, 340 Mo. 768, and State v. Cardwell in State v. McBride, 68 S.W.2d l. c. 690. And both the Cardwell and McBride cases in State v. Sumpter, 73 S.W.2d 765, 335 Mo. 620. (11) The granting or refusal of a continuance is largely within the discretion of the trial court. But where the defendant has used due diligence and is in good faith, and the evidence is material and not cumulative, the rights of the person charged require the continuance for a reasonable time, and refusal to do so is error. State v. Farrow, 74 Mo. 531; State v. Hesterly, 182 Mo. 16; State v. Arnold, 183 S.W. 289; State v. Wright, 77 S.W.2d 459; State v. Hesterly, 182 Mo. 16.

Roy McKittrick, Attorney General, and W. O. Jackson, Assistant Attorney General, for respondent.

(1) Appellant's specifications of error number 1, 2, 3 and 4 in his motion for new trial present no questions to the court for review. Sec. 4125, R. S. 1939; State v. Dennison, 154 S.W.2d 756; State v. McGee, 336 Mo. 1082, 83 S.W.2d 98; State v. Clark, 111 S.W.2d 101. (2) The trial court committed no error in connection with the admission in evidence of State's Exhibit No. 1, and in permitting same to be shown to the jury by the prosecuting attorney. State v. Pendergraft, 332 Mo. 301, 58 S.W.2d 290; State v. Dalton, 23 S.W.2d 1; State v. Taylor, 323 Mo. 15, 18 S.W.2d 474; Sec. 688, Title 28, U.S.C. A.; State v. Judge, 315 Mo. 156, 285 S.W. 718. (3) The court properly overruled the application for continuance based on the absence of a witness, Jack Hill. Secs. 4042, 4043, R. S. 1939; State v. Dalton, 23 S.W.2d 1. (4) The court properly refused to grant a new trial because of the alleged newly discovered evidence. State v. Vinson, 107 S.W.2d 16; State v. Hohensee, 333 Mo. 161, 62 S.W. 436.

OPINION

Ellison, J.

The appellant was convicted in the circuit court of Lawrence county, on change of venue from Newton county, of grand larceny for the theft of a jersey cow, in violation of Sec. 4456, R. S. 1939, Mo. R. S. A., sec. 4456. The information was drawn under the habitual criminal statutes, Secs. 4854-4855, R. S. 1939, Mo. R. S. A., secs. 4854-4855, and alleged that appellant had previously been convicted, punished and discharged in Oklahoma for robbery with firearms, a crime which would be punishable by imprisonment in the penitentiary if committed in this State, Sec. 4453, R. S. 1939, Mo. R. S. A., sec. 4453. The jury in the instant case assessed his punishment at imprisonment in the Missouri penitentiary for a term of five years, the maximum for the larceny under subdivision 3, Sec. 4457, R. S. 1939, Mo. R. S. A., sec. 4457; though the punishment may range as low as two years, under Sec. 4850, R. S. 1939, Mo. R. S. A., sec. 4850. But subdivision 2 of Sec. 4854, supra, provides such maximum punishment shall be assessed upon a conviction under the habitual criminal act.

There was evidence pro and con on the question of appellant's guilt in stealing the cow. He does not contend on this appeal that the evidence on the merits was insufficient to support the verdict. The assignments in his brief are limited to these points: (1) the trial court erred in admitting in evidence the record of his prior conviction in Oklahoma, because it was not properly authenticated; (2) the giving of the State's instruction No. 1 was erroneous because it required the jury either to acquit or to assess the maximum punishment of five years' imprisonment in the penitentiary, without allowing them the alternative of assessing a lighter penitentiary sentence for the grand larceny alone, independent of the prior conviction; (3) the refusal of appellant's application for a continuance was an abuse of discretion and a denial of justice.

Considering first appellant's assignment that the record of his prior conviction, confinement and discharge in Oklahoma (below called State's Exhibit 1) was not properly authenticated under U.S.C. A., Title 28, sec. 688. The document consisted of two parts: (1) appellant's prison record, showing a conviction for robbery with firearms, a 10 years' sentence, and discharge after 5 years, and bearing a printed subscription of the warden's name "by" a deputy warden whose name was in writing; (2) a copy of the judgment of conviction in the District Court of Osage county, Oklahoma, certified only by a deputy clerk of that court. The certified copy of the judgment was a part of the penitentiary records. Following these was a certificate of authentication by the assistant record clerk of the Oklahoma penitentiary, which was in turn authenticated by R.W. Higgins, presiding judge of the District Court of Pittsburg county, Oklahoma, the latter certificate being also authenticated by the clerk of that court through a deputy. But the deputy clerk's certificate was not authenticated by the judge.

The specific contentions in appellant's brief are that there was no showing of laws of Oklahoma requiring "such a record" to be kept by "the officer certifying," and that we cannot take judicial notice of the statutes of that state; that the authentication is also bad as having been made by the deputy district clerk rather than by the clerk of the court in person; that the judgment was not authenticated as required by the Federal statute in that such authentication could not legally be made by the Warden or his assistant clerk, or by Judge Higgins of the Pittsburg county District Court or his clerk or deputy clerk, but only by the judge and clerk of the Osage county District Court where the judgment was rendered; and finally that Judge Higgins' authentication of the assistant record clerk's certification of the prison record and judgment on file does not state the prison was in Pittsburg county where he presided, and at most was merely an authentication of a copy of a copy of the judgment, which rendered the latter inadmissible in evidence.

We must first determine whether the objections made and preserved by appellant in the trial court entitle him to challenge the authentication of his prison record and judgment of conviction as he has done in his brief here. When the document was offered in evidence the only objection interposed by appellant (save on points now abandoned) was that "it is not properly authenticated according to proof of (in?) evidence." We interpret this as a general objection that the authentication was insufficient as the proof stood. The assignments in his motion for new trial complaining of the admission of the document (so far as pertinent here) are even more general. They charge: "(4) That the court erred in admitting into the evidence State's Exhibit No. One; (5) That . . . the court erred in permitting the prosecuting attorney to exhibit the prison record and the record of the Oklahoma State Penitentiary to the jury." It will be noted these assignments do not contain a charge even that the document was not properly authenticated; make no complaint about the admission of the judgment of conviction,...