State v. Wolfskill, 52620
| Decision Date | 13 November 1967 |
| Docket Number | No. 2,No. 52620,52620,2 |
| Citation | 421 S.W.2d 193 |
| Parties | STATE of Missouri, Respondent, v. Bernard Lason WOLFSKILL, Appellant |
| Court | Missouri Supreme Court |
Norman H. Anderson, Atty. Gen., Jefferson City, James J. Sauter, Special Asst. Atty Gen., St. Louis, for respondent.
Robert G. Duncan, Pierce, Duncan, Beitling & Shute, Kansas City, for appellant.
STOCKARD, Commissioner.
Defendant was charged under the habitual criminal statute, Section 556.280 (), with the offense of unlawfully selling marijuana. After a jury verdict of guilty the trial court sentenced defendant to ten years inprisonment.
Defendant does not challenge the sufficiency of the evidence, and we need not detail the facts which clearly authorized the verdict of the jury.
Out of the presence of the jury the trial court received evidence of defendant's previous conviction in the United States District Court for the Western District of Missouri for unlawfully selling narcotic drugs. Defendant now contends on this appeal that 'there was not sufficient admissible evidence to establish the prior conviction and subsequent imprisonment' because the exhibits received in evidence were not 'properly certified and authenticated.' He further asserts that for this reason the court erred in not submitting the issue of the punishment to the jury.
Exhibit 5 consisted of a reproduced copy of what is labeled 'Judgment and Commitment' of the United States District Court for the Western District of Missouri wherein Bernard Larson Wolfskill is shown to have pleaded guilty to four counts of an information in which he was charged with unlawfully selling narcotic drugs, and that upon his plea of guilty he was sentenced to the custody of the United States Attorney General for a term of three years on each count, the sentences to run concurrently. The document contains the signature of the district judge and the deputy clerk. On an identical copy the name of the district judge and the clerk are typed thereon, and the deputy clerk is shown to have certified the copy to be a 'true copy.' Exhibit 6 is identical with the document comprising a part of Exhibit 5 containing the certificate of the deputy clerk except on the back thereon the deputy marshal made a return that he had executed 'The within Judgment and Commitment' by delivering Bernard Larson Wolfskill to the 'U.S. Public Health Service Hospital at Fort Worth, Texas, the institution designated by the Attorney General, with a certified copy of the within Judgment and Commitment.' Attached to this document are two photographs of a person not named, but showing a number and the words, 'Federal Correctional Institution, Texarkana, Texas' and the date '9 28 54.' There is no contention that these are not photographs of defendant. Attached to and a part of each exhibit is a certificate of General Services Administration, in which it is stated that 'the annexed copy (or each of the annexed copies) is a true copy of a record in the legal custody of the administrator of General Services.' Each certificate is signed by the 'Chief, Reference Service Branch,' and there is then a certification by the 'Regional Administrator' that the person who signed as 'Chief, Reference Service Branch' was in fact the person holding that position, and that 'to his certification as such full faith and credit are and ought to be given.'
This was the only evidence from which the circuit court made the necessary findings for the application of Section 556.280, known as the habitual criminal act.
The habitual criminal statutes do not prescribe how proof of a former conviction shall be made. State v. Baugh, Mo., 323 S.W.2d 685, 690. Although the original record, 'plus evidence identifying the accused as the convict,' is the best evidence, State v. Kimbrough, 350 Mo. 609, 166 S.W.2d 1077, 1081, it is not always possible to produce the original record in court, and in that event proof of the fact of a prior conviction and sentence must conform to the requirements for the proof of any other fact. State v. Young, Mo., 366 S.W.2d 386, 388.
Section 1738, 28 U.S.C.A., provides that certain documents which have been authenticated as therein set out shall have the same full faith and credit in every court within the United States as they have by law or usage in the courts of the state from which they are taken. Without determining whether this statute applies to a document of a federal court within this state, See 20 Am.Jur., Evidence, § 1017, and without detailing the deficiencies, it is sufficient to say that Exhibits 5 and 6 do not meet the authentication requirements of this federal statute. However, the federal statute does not prescribe the only basis for the admission in evidence of documents, and a state may by statute provide that in its own courts documents shall be admissible as evidence when attested or authenticated in a prescribed method which may be less formal than that required by the federal law, if such method does not exclude documents authenticated as prescribed by the federal acts. State v. Young, supra. Missouri has done this, and we shall now consider those statutory provisions.
Section 490.130 provides that the records and judicial proceedings of any court of the United States, or of any state 'shall have such faith and credit given to them in this state as they would have at the place whence the said records come' when they are (1) 'attested by the clerk thereof, with the seal of the court annexed, if there be a seal,' and (2) 'certified by the judge, chief justice or presiding magistrate of the court to be attested in due form.' There then follows a less exacting provision pertaining to the admission in evidence of copies from the record of proceedings of any court of record of this state. The copy of the judgment and commitment constituting a part of Exhibit 5 is attested by the clerk of the court as a true copy. The reproducing process does not show the impression of a seal, if one appeared on the original copy. However, defendant does not challenge the admission of the record on the basis that there was in fact no seal. There is no certificate by the judge of the court that the document was attested by the clerk 'in due form.'
In McGregor v. Hampton, 70 Mo.App. 98, this precise issue was before the Kansas City Court of Appeals in 1897. There a judgment of a federal court in this state was offered in evidence but was refused because although it was attested by the clerk it was not certified by the judge. After quoting what is now Section 490.130 pertaining to the admission in evidence of the records and judicial proceedings of 'any court of the United States, or of any state,' it was held that the statute was not intended to apply to the federal courts of the state in which the record of such court is offered. The reason for the ruling was stated as follows: We are in agreement with the above ruling and the reason advanced therefor. When the records of a federal court in this state are offered in evidence in a court of this state the certificate of the judge of the federal court that the attestation of the clerk is in due form is but a formality, and the absence of that formality is not prejudicial to the defendant when the trial court is able to and does make that determination. In this case the ruling of the trial court that Exhibit 5 be admitted in evidence...
To continue reading
Request your trial
-
State v. Smith
...basis for authenticating a sister state's court order. See Donald v. Jones, 445 F.2d 601, 606 (5th Cir. 1971); State v. Wolfskill, 421 S.W.2d 193, 195-96 (Mo. 1967); Price v. Price, 447 N.E.2d 769, 772 (Ohio Ct. App. 1982); Murphy v. Murphy, 581 P.2d 489, 492 (Okla. Ct. App. 1978). As the F......
-
Legum v. Brown
...the law of the forum State. See General Acceptance Corporation v. Holbrook, 254 Miss. 78, 179 So.2d 845, 846 (1965); State v. Wolfskill, 421 S.W.2d 193, 195 (Mo.1967); Price v. Price, 4 Ohio App.3d 217, 447 N.E.2d 769, 772 (1982); Murphy v. Murphy, 581 P.2d 489, 492 (Okla.App.1978); Commonw......
-
State v. Smith
...Donald v. Jones, 445 F.2d 601, 606 (5th Cir. 1971); Price v. Price, 447 N.E.2d 769, 772 (Ohio Ct. App. 1982); and State v. Wolfskill, 421 S.W.2d 193, 195 (Mo. 1967). We agree with the State's reasoning and consider the cases cited persuasive. 28 U.S.C. § 1738 sets forth conditions under whi......
-
State v. Smith, No. 03-1698-CR (Wis. App. 3/25/2004)
...Donald v. Jones, 445 F.2d 601, 606 (5th Cir. 1971); Price v. Price, 447 N.E.2d 769, 772 (Ohio Ct. App. 1982); and State v. Wolfskill, 421 S.W.2d 193, 195 (Mo. 1967). We agree with the State's reasoning and consider the cases cited persuasive. 28 U.S.C. § 1738 sets forth conditions under whi......