### No. 12231 INTHE 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 theFifteenth JudicialDistrict, 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, AssistantAttorney General,

Helena, Montana. James 

### A. McCann, CountyAttorney, 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 inthe first degree inthe district court of the fifteenthjudicial district, Roosevelt County. Following the verdict of guilty, the county attorney filedunder 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 inthe first degree), of not less than fiveyears 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, toan increased term of thirty years in the stateprison. The judgment of the district court was appealed to this Court. The convictionwas affirmed. The increased sentence was setaside 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 tohave been convicted of prior crimes, so as topermit the court to proceed under section 94-4713, R.C.13. 1947. Statev. Walter Thomas Cooper, 158Mont. 102, 489 P.2d 99, 28 St.Rep. 835, On November 4, 

### 1971, after the causewas returned to the di-strictcourt, the state again sought increased punishment of defendant as 

### a prior convicted felon under section 94-4713, R.C.M. 1947. The statecharged defendant by informationwith two prior cilnvictions (1) that defendant was convicted dassaultwith intent tokillatQuincy, 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 thisproceeding, the district court resentenced defendant to thirty years inthe Montana stateprison. Defendant appeals from this sentence and presents three issues forreview:

### I. Whether the districtcourt erred inadmitting state's exhibit "J" 

### inevidence? 2. 

### bfi~etherthe districtcourt erred i.n admitting state's exhibit "K" 

### inevidence? 3. Whether therewas sufficient evidence to support the finding by the court of a prior conviction? state's exhibit "J" 

### isa letter tothe Roosevelt County Attorney from an investigator for the sheriff of Plums County, California. The letterwas 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 letterwas impressed with the clerk's official seal, The state has admitted that the form of acknowledgment prescribed by the California statuteswas 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 deadlyweapon. When state's exhibit 

### "J" was offered intoevidence, defendant objected thatno attempt was made toidentify, authenticate or prove it 

### and that exhibit "J" 

### was merely hearsay, but the court admitted the exhibit over the objection. Defendant argues again inthis appeal that section 94-7209, 

### R.GM. 1947, provides the rules of evidence incivilactions are alsoapplicable to the criminal code regarding the admissibility of state's exhibit 

### "J". Defendant argues that Nontana law divideswriting 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 tocomply with the 

### law governing the admissibility of either type of writing inevidence. Further, that because none of the requirements for proving a writing as set forth in the above cited statuteswere met, it

### was error for the district court toadmit state's exhibit "J" 

### without any proof.The second exhibit objected toby defendant isstate's exhibit "K", which isan 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, firstcalled Richard Lee, an FBI agent, todescribe theprocess of obtaining an identificationrecord. 

### Mr. Lee stated that when a fingerprint card isforwarded to the FBI it iscompared to the fingerprint cards on fileand if the fingerprints forwarded match any of those on filethen the identificationrecord 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 cardwas forwarded to the FBI. Defendant strongly urges that no evidencewas introduced to identify the fingerprints mailed tothe FBI as those of defendant, Walter Thomas Cooper, Defendant states that no one
was able to testify as towhose fingerprintswere sent tothe

!%I, and the County Attorney merely presumed they were ~ooper's. Defendant cites De Gesualdo v. People, 147 Colo. 

### 426, 364 P.2d 

### 374, 86kLR2d 1435, inwhich the Colorado Supreme Court held that assumptions cannot be indulged inthis sensitive area of the law and pointed out that itsdecisions consistentlyrequired strictproof. De Gesualdo 

### is a similar case inwhich 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 identificationbureau expert who testified from an identification card inhis possession as tohis comparison of fingerprints and the photograph on the card with fingerprints on fileinthe 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 linkwas not introduced in evidence, and no evidence was introduced to identify the fingerprints inthe local sheriff's office as those of defendant. The statecontends the legislature, in adopting theMontana 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 tobe sentenced i-s guilty of a prior conviction after the issue of guilthas been decided in a second prosecution. 

### It further contends the sentencingprocedure is less strictunder 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, isoffered to show that the trialcourt 

### is given wide discretion inthe type of sentence tobe imposed; and thus the statecontends the rigid rules of evidence requisite inthe trialof the issue of guilt should not be imposed on the court atthe presentence hearing. The state cites in sup ortWilliams v. New York, 337 

### U.S. 241, 

# <-p 69 S.Ct. 1079, 

### 93 L'ed 2d 1337. The misconception demonstrated inthis case lies inthe

I' assutnption that the proceedings to increase punishment" is part of the sentencingprocedure; it isnot and the statutes under which we proceed arevery clear. The fact that thejudge

II makes the determination under the new procedure" code, section 95-1506, R.C.M. 1947, does not change the character of the proceedings from theprocedural method prior to the new c~de when the matter was tried to thejury. When the stateproceeds against 

### a defendant and alleges 

### a cri-me, itmust prove allthe material allegations

### by competent evidence as required by iaw beyond a reasonable doubt, and if successful can impose the sentence assigned by statute to thatparticular crime. If 

### the state elects to allege further that Che defendant isa prior felon and seeks an increase inor beyond that sentence authorized by statute for conviction of the prindpal crime, then the statemust carry the additional burden of proving the allegation of the prior offenses inthe

same manner as the other material allegations, beyond a reasonable doubt, with competent evidence. If the state is successful, the court isthen authorized to proceed under section 94-4713, R.C.M. 1947, and impose the increased sentence provided by that statute. At thispoint inthe criminal process when the trialjudge 

### is authorized to sentence under section 94-4713, R.C.M. 1947, he has allof the latitudeprovided 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 thewhole 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 trialcourt. The objection toexhibit "K", the FBI "rap" sheer, 

### is valid. The statement by the state that fingerprint evidence for identificationhas been accepted by this and other courts

as proof of identity iscorrect. However, the fingerprint method of identificationrequires an incourt showing that the fingerprintsrelied upon for identification areidentical to theknown prints of defendant. This isbasically the holding inDe 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 ofcourt Raynelle Slaten, certifiedby thejudge of the superior court asbeing such, and the documents "F", 

### "En, "G" and 

### "I" being indue form of law and practice of the state of California, tobe 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 isa claimed technical error in form. The business record kept by the sheriff's department isnot a record or fileof the clerk's office, aswere the accompanying exhibits. ~efendant 

### 's objection tothe introduction of exhibit "J"

was that itwas merely hearsay. Instruments presented incourt are allsecondhand or out of court assertions, sworn or not, and an exception to the hearsay rule isestablished by thekind 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 

### iswithin the discretion of the trialjudge. 

### As discussed previously, the exhibits allbeing related and from the same source and considered together, they have the characteristics of inherent trustworthiness sufficient to

move the trialcourt to grant admission. From these documents, the trialcourt had substantial credible evidence upon which to base a finding of commission and identitybeyond a reasonable doubt inrelation to the California conviction. We therefore affirm this finding and based thereon, the sentence of the trialcourt 

### is affirmed.

### We Concur:



# ................................ Associate Justices.



### Mr. Chief Justice James T. 

### Harrison, deeming himself disqualified, tookno part in this Opinion.