People v. Darling

California Court of Appeal Feb 4, 1932 No. Docket No. 2157.Published

Before: Fricke

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Holding. The court held that documents offered to prove a prior conviction under Penal Code section 969b are inadmissible unless certified by the official custodian of the records, and a 'record clerk' does not qualify as such without further proof.

Issues

Whether documents certified by a 'record clerk' satisfy the 'official custodian' requirement of Penal Code section 969b.
Whether the admission of improperly certified records to prove a prior conviction constitutes prejudicial error.

Disposition. Affirmed in part, reversed in part.

Quotations verified verbatim against the opinion

“Since section 969b of the Penal Code makes certification by the “official custodian” a prerequisite to the admissibility of the documentary proof included in the section, the documents received in evidence here were inadmissible”

“The record is barren of any evidence which will warrant the inference that the documents in question were certified as required by section 969b of the Penal Code.”

“We hold, therefore, that, in the absence of evidence that the copies of the documents in question were certified by the official custodian of the originals, such copies were not admissible in evidence, and their reception in evidence over objection”

[454]

FRICKE, J.,

pro tem.

Appellant was charged by information with having on June 30, 1931, committed the crime of burglary and with having prior thereto been convicted of a felony in the state of Washington. The jury returned two verdicts, one finding the defendant guilty of the burglary charged and finding it to be a burglary of the second degree, the other that the charge of prior conviction of a felony was true. Motions of defendant for a new trial as to both issues were denied and defendant was sentenced to the state prison.

No attack is made upon the trial, verdict or judgment, so far as the charge of burglary is concerned. The sole point presented here is that the court erred in receiving certain documents in evidence to prove the prior conviction. These documents were offered under the provisions of section 969b of the Penal Code, adopted in 1931, making the records of any state penitentiary in which a defendant has been imprisoned

prima facie

evidence of his trial, conviction and imprisonment for felony, “when such records or copies thereof have been certified by the official custodian of such records”.

The prosecution offered and there was received in evidence without objection a card bearing the finger-prints of appellant taken by the finger-print deputy of the sheriff of Los Angeles County, who testified without objection that such finger-prints were identical with a photostatic copy of another card bearing finger-prints. This photostatic copy, also received in evidence without objection, bore upon its face also the words “Washington State Bureau of Identification, Walla, Walla”. The prosecutor next offered in evidence the reverse side of this photostatic copy, on which appears the following:

“W. H. Freeman, being first duly sworn upon oath deposes and says that he is the record clerk of the Washington State Penitentiary and that the reverse picture is a photostatic copy of the finger prints of Fred Darling taken upon his commitment to Washington State Prison June 15, 1928.

“ (Signed) W. H. Freeman

“Record Clerk

People v. Darling

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FRICKE, J.,

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