State v. Young

Decision Date08 April 1963
Docket NumberNo. 49507,No. 2,49507,2
Citation366 S.W.2d 386
PartiesSTATE of Missouri, Respondent, v. Verne Nelson YOUNG, Appellant
CourtMissouri Supreme Court

Schrader & Schrader, Earl H. Schrader, Jr., Kansas City, for appellant.

Thomas F. Eagleton, Atty. Gen., Wayne W. Waldo, Asst. Atty. Gen., Jefferson City, for respondent.

STOCKARD, Commissioner.

Defendant was charged under the habitual criminal statute, Section 556.280 (all statutory references are to RSMo 1959, V.A.M.S.), with the offense of stealing property having a value of more than $50. After a jury verdict of guilty the trial judge sentenced defendant to confinement for six years. Defendant has appealed from the ensuing judgment, and he contends that he was entitled to have the punishment determined by the jury because there was no properly admitted evidence of a prior conviction.

Out of the presence of the jury the State offered three exhibits, admitted in evidence over the objection of defendant, as proof of a prior conviction of a felony in the State of Kentucky. Exhibit 8 is a photostatic copy of a document entitled 'Judgment of Conviction' which purports to be the record of a conviction and sentence in the Circuit Court of Christian County, Kentucky, of Verne Young on July 22, 1958, for 'Storehouse Breaking.' The record purports to show allocution and sentence of imprisonment for a period of five years. On the original record the name of the judge is typed thereon, and there appears the following certificate: 'I, Durwood Walker, Clerk of the Christian Circuit Court, certify that the above is a true and correct copy of the judgment of conviction in this case of the Commonwealth of Kentucky against Verne Young as appears of record in my office. Witness my hand, this 22nd day of July, 1958.' The name of Durwood Walker is typed thereon, and below that in writing appears, 'By Mary Ann Brannock,' followed by the printed initials 'D. C.' If there was a seal on the original document it does not show on the photostatic copy offered in evidence. On the reverse side of the photostatic copy, and not as a part of the original document, is typed the following: 'This is a true and certified [hole in paper] this Commitment order as it appears on record in this office as of November 9th 1961.' There then appears the signature of 'H. R. Patterson' and below that is typed 'Senior Records Clerk Kentucky State Penitentiary Eddyville, Kentucky.' There also appears an impression of a seal of 'H. R. Patterson Notary Public State of Kentucky at Large.' Exhibit 7 is a photostatic copy of a document entitled 'Commutation of sentence' wherein it is shown that on December 3, 1959 a sentence of five years imposed on Verne Young for 'Storehouse Breaking' was commuted 'to time served.' The original document was signed by 'Thelma L. Stovall, Acting Governor Commonwealth of Kentucky,' and attested by 'Edith M. Whitworth, Secretary of State.' If the seal of the Commonwealth of Kentucky was on the original document it does not appear on the photostatic copy, but it appears that there is a place for such seal. On the reverse side of the photostatic copy, and not as a part of the original document, is typed the following: 'This is a true and certified copy of this Commutation Order as it appears on record in this office as of November 8, 1961.' There then appears the signature of H. R. Patterson with the typed identification as 'Senior Records Clerk Kentucky State Penitentiary, Eddyville, Kentucky,' and the same notary seal as appeared on Exhibit 8. Exhibit 6 is a photograph of a man with a sign on his chest reading as follows: 'Ky State Pen Eddyville Ky 22221 7 22 58.' On the reverse side there is typed the name of Verne Young, and various information which obviously was taken from other records. The 'Date of Info' is stated to be November 9, 1961, the date of the certificate on the back of Exhibit 8. At the bottom appears the signature of H. R. Patterson, and typed below it is 'Senior Record Clerk.'

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. The record is the best evidence, 'plus evidence identifying the accused as the convict.' State v. Kimbrough, 350 Mo. 609, 166 S.W.2d 1077, 1081. However, it is not always possible to produce the original record in court, particularly when the prior conviction occurred in another state, and in that event the proof of the fact of a prior conviction and sentence must conform to the requirements for the proof of any other fact. Section 1739, 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 detailing their deficiencies, it is sufficient to say that none of the three exhibits in this case met the authentication requirements of the above 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 act. State v. Hendrix, 331 Mo. 658, 56 S.W.2d 76, 79. 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 for the admission into evidence of copies of the record of proceedings of any court of record of this state. Only Exhibit 8 purports to be a copy of the record of a judicial proceeding, and it is readily apparent that it does not meet the minimum requirements of Section 490.130 to be admissible into evidence. The most glaring deficiency is that it is not 'certified by the judge * * * to be...

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23 cases
  • Overman v. Overman, 35238
    • United States
    • Missouri Court of Appeals
    • July 23, 1974
    ...filed in this cause' but fails to have appended the required certification of the judge that it is in due form. State v. Young, 366 S.W.2d 386, 388(4) (Mo.1963). Because of the posture in which this appeal has been presented to us, i.e., on whether or not this Tennessee divorce decree is en......
  • State v. Kaiser
    • United States
    • Missouri Supreme Court
    • February 9, 1976
    ...the issue of defendant's guilt herein, we think it not necessary in this case to require an entire new trial, as was done in State v. Young, Mo.Sup., 366 S.W.2d 386, where claimed previous convictions were in another state. * * The court then remanded the case to the trial court, '* * * wit......
  • State v. Gray
    • United States
    • Missouri Supreme Court
    • February 12, 1968
    ...in the office of Warden of the State Penitentiary of Arkansas, the same being a public office not appertaining to a court." In State v. Young, Mo., 366 S.W.2d 386, and in the there cited case of State v. Hendrix, 331 Mo. 658, 56 S.W.2d 76, there were no recitals in the documents offered to ......
  • State v. Stephens
    • United States
    • Washington Court of Appeals
    • September 18, 1972
    ...100 (5th Cir. 1960). The federal statute does not exclude other modes of authentication which are recognized by state law. State v. Young, 366 S.W.2d 386 (Mo.1963); Kearney v. Thomas, 225 N.C. 156, 33 S.E.2d 871 (1945). In Washington, the route for the admissibility of Non-judicial public r......
  • Request a trial to view additional results
2 books & journal articles
  • Chapter 9 901 Requirement of Authentication or Identification
    • United States
    • The Missouri Bar Evidence Guide Deskbook
    • Invalid date
    ...to admit the evidence. See State ex rel. Div. of Family Servs. v. Brown, 897 S.W.2d 154, 155–58 (Mo. App. S.D. 1995); State v. Young, 366 S.W.2d 386, 388 (Mo. 1963); Overman v. Overman, 514 S.W.2d 625, 633 (Mo. App. E.D. 1974). Under other circumstances, however, courts have been more lenie......
  • Section 14.15 Proof by Public Records of Another State
    • United States
    • The Missouri Bar Sources of Proof Deskbook Chapter 14 Proof of Personal History
    • Invalid date
    ...which it would be accepted in the sister state. For a discussion comparing the use of § 490.220 and 28 U.S.C. § 1739, see State v. Young, 366 S.W.2d 386 (Mo....

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