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 wеre 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 evidеnce 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 fingеr-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 evidеnce 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 piсture 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
*455 “Subscribed and sworn to bеfore me this 5th day of September A. D. 1931.
“(Notary seal) P. E. Mahoney
“Notary Public in and for the State of Washington, residing in Walla Walla, Washington.”
To this appellant objectеd upon the ground that there was nothing to show that the person making, the certificate was the legal custodian of the original of such record. The objection was overruled. Copies of the judgment and sentence, the order transferring the prisoner from the state reformatory to the state prison and commitment to the penitentiary, certified in the same general form as the photostatic copy above referred to, but specifying the identity of each document thus certified- to, were also received in evidence оver similar objections.
The basic question presented is: Were these exhibits certified by the official custodian of such records? The law of the state of Washington, of which we take judicial notice (subd. 3, sec. 1875, Code Civ. Proc.), provides for a state penitentiary near thе city of Walla Walla, for a superintendent thereof who shall keep a registry of the convicts and authorizes such duty to be performed by a deputy or clerk. While the term “official custodian” would include not only the prison superintendent, but also a clerk or deputy, if such subordinate were charged with the custody of the records as a part of his duty, it does not follow that every clerk and deputy emplоyed in such penitentiary would be an “official custodian”. 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 unless there was proof that their certification was by an official custodian. If there was any evidence that W. II. Freeman was an official custodian of the prison records it must be found within the certificate itself, for there was no other evidеnce tending to prove this essential fact. In
Galvin
v. Palmer,
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 was prejudicial error. Eliminating these copies from the evidence the verdict finding the allegation as to prior conviction to be true is not supported by аny evidence, and the motion for a new trial, as directed to that verdict, should have been granted.
The judgment and the order denying a new trial of the issue as to the prior conviction of the defendant are reversed. The order denying the motion for a new trial directed against the verdict finding the defendant guilty of burglary is affirmed.
Craig, Acting P. J., and Thompson (Ira F.), J., concurred.