No. 12231 

IN THE SUPREME COURT OF THE STATE OF MONTANA 

1972 

THE STATE OF MONTANA, 

Plaintiff and Respondent, 

-vs - 

WALTER THOMAS COOPER, 

Defendant and Appellant. 

Appeal from: District Court of the Fifteenth Judicial District, 

Honorable M, James Sorte, Judge presiding. 

Counsel of Record: 

For Appellant : 

Harrison, Loendorf and Poston, Helena, Montana. 

Jerome T. Loendorf argued, Helena, Montana. 

For Respondent : 

Hon. Robert L. Woodahl, Attorney General, Helena, 

Montana. 

Jonathan B. Smith argued, Assistant Attorney General, 

Helena, Montana. 

James A. McCann, County Attorney, argued, Wolf Point, 

Montana. 

Submitted: September 25, 1972 
Mr. Justice Sene 3. Ualy delivered the Opinion of the Court. 

Defendant, Walter Thomas Cooper, was convicted of the crime 

of assault in the first degree in the district court of the 

fifteenth judicial district, Roosevelt County. Following the 

verdict of guilty, the county attorney filed under section 94- 

$713, R.C.M. 1947, an information charging defendant with prior 

felony convictions to seek increased punishment beyond that 

prescribed by section 94-601, R.C.M. 1947, (assault in the first 

degree), of not less than five years nor more than twenty years. 

The procedural process set forth in section 95-1506, R..C.M. 

1947,Montana Code of Criminal Procedure, governing increased 

punishment was followed. Thereafter, defendant was sentenced 

under section 94-4713, R.C.M. 1947, to an increased term of 

thirty years in the state prison. The judgment of the district 

court was appealed to this Court. The conviction was affirmed. 

The increased sentence was set aside and the cause remanded to 

Che district courc for further proceedings and sentencing. The 

record did not contain competent evidence to establish the 

identity of defendant as the person alleged by the state to have 

been convicted of prior crimes, so as to permit the court to 

proceed under section 94-4713, R.C.13. 1947. State v. Walter 

Thomas Cooper, 158 Mont. 102, 489 P.2d 99, 28 St.Rep. 835, 

On November 4, 1971, after the cause was returned to the 

di-strict court, the state again sought increased punishment of 

defendant as a prior convicted felon under section 94-4713, R.C.M. 

1947. The state charged defendant by information with two prior 

cilnvictions (1) that defendant was convicted dassault with 

intent to kill at Quincy, California, on or about January 25, 

1965, and (2) that defendant was convicted of grand larceny at 

Sidney, Montana, on or about November 15, 1967. 

Following this proceeding, the district court resentenced 

defendant to thirty years in the Montana state prison. Defendant 

appeals from this sentence and presents three issues for review: 
I. Whether the district court erred in admitting state's 

exhibit "J" in evidence? 

2. bfi~ether the district court erred i.n admitting state's 

exhibit "K" in evidence? 

3. Whether there was sufficient evidence to support the 

finding by the court of a prior conviction? 

state's exhibit "J" is a letter to the Roosevelt County 

Attorney from an investigator for the sheriff of Plums County, 

California. The letter was signed by Leonard Mosely, Investigator, and was also signed by Raynelle Slaten, Plumas County Clerk 

and ex-officio clerk of the superior court of that county. The 

letter was impressed with the clerk's official seal, The state 

has admitted that the form of acknowledgment prescribed by the 

California statutes was not complete. Exhibit "J" states that 

the investigator certifies that the photographs attached to the 

letter are those of Walter Thomas Cooper, who was found guilty 

of violation of Section 245 of the California Penal Code, 

assault with a deadly weapon. 

When state's exhibit "J" was offered into evidence, defendant 

objected that no attempt was made to identify, authenticate or 

prove it and that exhibit "J" was merely hearsay, but the court 

admitted the exhibit over the objection. Defendant argues again 

in this appeal that section 94-7209, R.GM. 1947, provides the 

rules of evidence in civil actions are also applicable to the 

criminal code regarding the admissibility of state's exhibit "J". 

Defendant argues that Nontana law divides writing into two 

kinds, public and private. Sections 93-1001-1, 1001-2,1001-3, 

3,C.M. 1947. He contends the state did not attempt to comply with 

the law governing the admissibility of either type of writing 

in evidence. Further, that because none of the requirements for 

proving a writing as set forth in the above cited statutes were 

met, it was error for the district court to admit state's exhibit 

"J" without any proof. 
The second exhibit objected to by defendant is state's 

exhibit "K", which is an identification record maintained by 

the Federal Bureau of Investigation. The state in attempting to 

Lay a foundation for the introduction into evidence of this 

exhibit, first called Richard Lee, an FBI agent, to describe 

the process of obtaining an identification record. Mr. Lee 

stated that when a fingerprint card is forwarded to the FBI 

it is compared to the fingerprint cards on file and if the 

fingerprints forwarded match any of those on file then the 

identification record of the person whose prints were matched 

i.s returned to the requesting party. 

The record reveals by way of testimony of the Roosevelt 

County Attorney and the Roosevelt County Sheriff that neither 

individual knew who prepared the particular fingerprint card 

that was mailed to the FBI, although the Roosevelt County 

Attorney could testify that a fingerprint card was forwarded 

to the FBI. 

Defendant strongly urges that no evidence was introduced 

to identify the fingerprints mailed to the FBI as those of 

defendant, Walter Thomas Cooper, Defendant states that no one 

was able to testify as to whose fingerprints were sent to the 

!%I, and the County Attorney merely presumed they were ~ooper's. 

Defendant cites De Gesualdo v. People, 147 Colo. 426, 364 P.2d 

374, 86 kLR2d 1435, in which the Colorado Supreme Court held that 

assumptions cannot be indulged in this sensitive area of the 

law and pointed out that its decisions consistently required 

strict proof. 

De Gesualdo is a similar case in which the defendant was 

charged wj-th having been convicted of felonies on two prior 

occasions, The only evidence to identify the defendant with 

che person previously convicted was the testimony of an identification bureau expert who testified from an identification 

card in his possession as to his comparison of fingerprints 

and the photograph on the card with fingerprints on file in 
the office of the local sheriff. The court held the evidence 

was insufficient to support the prior conviction charge because 

the identification card relied on as a connecting link was not 

introduced in evidence, and no evidence was introduced to 

identify the fingerprints in the local sheriff's office as those 

of defendant. 

The state contends the legislature, in adopting the Montana 

Code of Criminal Procedure in 1967, Title 95, R.C.M, 1947, 

granted in section 95-1506 the discretion to the court alone to 

make the determination of whether the defendant to be sentenced 

i-s guilty of a prior conviction after the issue of guilt has 

been decided in a second prosecution. It further contends the 

sentencing procedure is less strict under the new Code, sections 

95-2203 through 95-2205, R.C.M. 1947, which allows a court to 

consider outside reports about the defendant when determining 

his sentence. Section 95-2206, R.C.M. 1947, is offered to 

show that the trial court is given wide discretion in the type 

of sentence to be imposed; and thus the state contends the rigid 

rules of evidence requisite in the trial of the issue of guilt 

should not be imposed on the court at the presentence hearing. 

The state cites in sup ort Williams v. New York, 337 U.S. 241, <-p 69 S.Ct. 1079, 93 L'ed 2d 1337. 

The misconception demonstrated in this case lies in the 

I' assutnption that the proceedings to increase punishment" is 

part of the sentencing procedure; it is not and the statutes 

under which we proceed are very clear. The fact that the judge 

I I makes the determination under the new procedure" code, 

section 95-1506, R.C.M. 1947, does not change the character 

of the proceedings from the procedural method prior to the new 

c~de when the matter was tried to the jury. 

When the state proceeds against a defendant and alleges a 

cri-me, it must prove all the material allegations by competent 

evidence as required by iaw beyond a reasonable doubt, and if 

successful can impose the sentence assigned by statute to that 
particular crime. If the state elects to allege further that 

Che defendant is a prior felon and seeks an increase in or 

beyond that sentence authorized by statute for conviction of 

the prindpal crime, then the state must carry the additional 

burden of proving the allegation of the prior offenses in the 

same manner as the other material allegations, beyond a 

reasonable doubt, with competent evidence. If the state is 

successful, the court is then authorized to proceed under 

section 94-4713, R.C.M. 1947, and impose the increased sentence 

provided by that statute. 

At this point in the criminal process when the trial judge 

is authorized to sentence under section 94-4713, R.C.M. 1947, 

he has all of the latitude provided by the sentencing sections 

95-2203 through 95-2205, R.C.M. 1947, and may consider outside 

reports, presentence investigation,et cetera,to inform the 

court as to the whole person as set forth particularly in 

section 95-2204, R.C.M. 1947. 

In this cause there has been some comment concerning the 

exhibits that were admitted by the district court. We will 

proceed to examine those certified to us by the trial court. 

The objection to exhibit "K", the FBI "rap" sheer, is 

valid. The statement by the state that fingerprint evidence 

for identification has been accepted by this and other courts 

as proof of identity is correct. However, the fingerprint 

method of identification requires an in court showing that the 

fingerprints relied upon for identification are identical 

to the known prints of defendant. This is basically the holding 

in De Gesualdo. 

We have exanlined exhibit "J" and taken together with proper1.y 

certified documents from the same source (1) exhibit "F", 

tilinute entry of arraignment and plea of defendant; (2) exhibit 

"E", report of probation officers and judgment; (3) exhibit "G", 

order suspending execution of sentence; and (4) exhibit "I", 

release on probation, we find the same ex-officio'clerk of 
court Raynelle Slaten, certified by the judge of the superior 

court as being such, and the documents "F", "En, "G" and "I" 

being in due form of law and practice of the state of California, 

to be the same person who signed and placed the affixed seal 

on exhibit "3". That the investigator for the sheriff's office 

made the attesting statement rather than the ex-officio clerk 

is a claimed technical error in form. The business record 

kept by the sheriff's department is not a record or file of the 

clerk's office, as were the accompanying exhibits. 

~efendant 's objection to the introduction of exhibit "J" 

was that it was merely hearsay. 

Instruments presented in court are all secondhand or out 

of court assertions, sworn or not, and an exception to the 

hearsay rule is established by the kind of document, its 

authenticity , the probability of fraud being practiced on the 

court and whether or not the genuineness of the offered document 

has been challenged. Authenticity for admissibility can be 

demonstrated by direct or circumstantial evidence and sufficiency 

of the evidence for foundation is within the discretion of the 

trial judge. 

As discussed previously, the exhibits all being related 

and from the same source and considered together, they have 

the characteristics of inherent trustworthiness sufficient to 

move the trial court to grant admission. From these documents, 

the trial court had substantial credible evidence upon which to 

base a finding of commission and identity beyond a reasonable 

doubt in relation to the California conviction. 

We therefore affirm this finding and based thereon, the 

sentence of the trial court is affirmed. 
We Concur: 

................................ Associate Justices. 

Mr. Chief Justice James T. Harrison, deeming himself disqualified, 

took no part in this Opinion.