Plunkett v. State, 437 P.2d 92

Plunkett v. State

437 P.2d 92

Nev.

1968

Check Treatment

OPINION

By the Court,

Thompson, C. J.:

This appeal by Wayne Harrison Plunkett is from a conviction of the primary offense of first degree burglary and the judgment and sentence thereafter pronounced adjudicating him to be an habitual criminal. The sufficiency of the evidence to suрport conviction of the primary offense is not questioned. However, he dоes assert that the trial court erred when it allowed the prosecutor to cross-examine him about prior felonies, and where he had first met his codefendаnt Lentz. Furthermore, he claims that the proof of habitual criminality submitted by the state at the post-trial hearing was legally insufficient. None of his claims has merit, and we affirm.

1. On сross-examination the prosecutor asked Plunkett how many times he had been сonvicted of a felony, and whether any of the convictions was for burglary. The court permitted answers over objection of defense counsel. Our *147 statutes, NRS 48.020 and 48.130, 1 allow impeachment of a witness by showing his previous ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍conviction for felony. Johnson v. State, 82 Nev. 338, 342, 418 P.2d 495 (1966). However, the appellant suggests that the statutes should be construed to limit inquiry to оne prior felony, and to preclude entirely its description by name. Exceрt for Montana (State v. Quinlan, 244 P.2d 1058 (1952); State v. Coloff, 231 P.2d 343 (1951)), case authority does not support him. The California statute, 2 as ours, speaks in the singular. The highest court of that state allows inquiry ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍about thе number and names of prior felony convictions. People v. Smith, 409 P.2d 222, 230 (Cal. 1966); People v. Terry, 370 P.2d 985, 1000 (Cal. 1962). Other states agree. State v. Sayward, 404 P.2d 783 (Wash. 1965); State v. Williams, 417 P.2d 62 (N.M. 1966); State v. Owen, 253 P.2d 203 (Idaho 1953). The detаils and circumstances of the prior crimes are, of course, not appropriate subjects of inquiry. People v. Smith, supra. In line with California, we hold that our stаtutes do not preclude inquiry into the number and names of the prior felony convictions. It is a matter addressed to the discretion of the trial judge and he may allow оr rule out such inquiry according to his view of the demands of fairness in the case before him.

The appellant first met his codefendant Lentz in prison. On cross-examination he was asked where he first met Lentz. The propriety of the question was upheld and he answered. In the context of this case the inquiry was innocuous since the aсcused had already mentioned six prior felony convictions, four or five of which were for burglary.

2. At the habitual hearing the State offered exemplified ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍copies of two prior felony convictions, one of Wayne H. *148 Plunkett, and the other of Wayne Plunkett. 3 These exhibits were prima facie proof [NRS 207.010(6)] and, under the rule of Hollander v. State, 82 Nev. 345, 418 P.2d 802 (1966)— proof of idеntity from name alone — would sustain the adjudication of habitual criminality. In contrast with Hоllander, supra, the State here submitted additional proof of identity— certified fingerprint cards and photographs secured from the wardens of penal institutions where Plunkett had been confined. These certified records were admissible. 28 U.S.C.A. § 1739. The fingerprint cards were compared with prints taken when Plunkett was booked on the present charge and expert testimony received that all prints were of thе same person. The proof in this case even satisfies the burden placed upon the State by the dissenting opinion in Hollander, supra. We perceive nо error.

Collins, Zenoff, Batjer, and Mowbray, JJ., concur.

Notes

NRS 48.020. “No person shall be disqualified as a witness in any action or procеeding * * * by reason of his ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍conviction of felony, but such conviction may be shown for thе purpose of affecting his credibility * *

NRS 48.130. “A witness shall answer questions legal and pertinent to the matter in issue, though his answer may establish a claim against himself, but he need not give an answer which will have a tendency to subject him to punishment for a felony, nor nеed give an answer which will have a direct tendency to degrade his character, unless it be to the very fact in issue, or to a fact from which the fact at issue would be presumed. But a witness shall answer as to the fact of his previous conviction for felony.”

Cal. Evid. Code § 788 (former C.C.P. 2051) reads: “For the purpose of attacking the сredibility of a witness, it may be shown by the examination of the witness or by the record of the judgment that he has been convicted of a felony * *

The judicial records were properly authenticated. ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍NRS 49.060; 28 U.S.C.A. § 1738.