People v. Howard

CASHIN, J.

Appellant was charged by information, filed in the superior court of Alameda County, with the crime of attempted burglary and further therein charged with having on January 14, 1920, prior to the attempted burglary alleged, been convicted under the name of Charles Leonard, of a felony, to wit, burglary of the second degree in the superior court of San Diego County; and that on said conviction he served a term of imprisonment in the California state prison at San Quentin. Appellant entered a plea of not guilty to both charges, on both was convicted, and was sentenced to be imprisoned in said state prison. He moved for a new trial, which was denied, and from the order and judgment has appealed.

Appellant assigns certain rulings of the court as prejudicial error, and contends that the evidence adduced by the

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prosecution on the charge of a prior convicton is insufficient to support the verdict.

The evidence in support of that charge was the testimony of A. B. Monahan, a guard employed at San Quentin prison, who identified appellant as a person who between the months of January, 1920, and November, 1922, was confined in that prison as a convict and known to the witness as Blackie Leonard. Appellant testified on his own behalf, and on cross-examination refused to answer the questions of the district attorney as to whether he had ever been convicted of a felony, and whether he had not been so convicted in the superior court of San Diego County under the name of Charles Leonard. The prosecution offered in evidence a paper purporting to be a copy of a copy of a judgment and commitment to the state prison at San Quentin of and from the superior court of San Diego County, with a paper attached thereto purporting to be a copy of the certificate of the clerk of that court authenticating it as a true copy of the judgment, the purported judgment being one of conviction of Charles Leonard in said court on January 14, 1920, of the crime of burglary of the second degree. Attached to the paper offered was a certificate upon which was impressed the seal of the state prison at San Quentin, such certificate purporting to be that of J. A. Johnston, the warden, by K. T. Pietrzak, secretary, and certifying the papers attached, being the copy of the certified copy of the judgment mentioned, to be “a true and correct copy of the commitment in the ease of prisoner No. 31995, Charles Leonard, now on file in this office.” Appellant objected to the evidence as being incompetent on the grounds that it was hearsay and secondary evidence.