80 Wash. 75 | Wash. | 1914
Appeal from a judgment of guilt upon an information charging appellant with the crime of perjury. The information, in due form, charged that appellant, in a certain cause in which the inquiry was material, did, upon his oath, falsely testify that he had never been convicted of a felony except on one occasion at Seattle; whereas in truth he had been convicted of a felony in the county and state of New York on December 26, 1894, and in the county of Cook and state of Illinois, on February 23, 1907. Appellant presents thirty-seven assignments of error, under eight heads.
(1) The cause came on for trial on February 17, 1913, when appellant, through his counsel, moved for a continuance until some time in the following March. The grounds for the motion were principally that counsel for appellant had not had sufficient time to prepare a defense and that the panel of jurors then in attendance was prejudiced against appellant, because of his previous conviction during the same month on another charge. The motion was denied. There is nothing in the showing made upon this motion from which it appears that the lower court abused its discretion in denying the continuance, and no error is found.
(2) Appellant moved the court to exclude Everett C. Ellis, of counsel for the state, from participating in the trial. We find no error in the denial of this motion. The statement of facts recites that Mr. Ellis was a deputy prosecuting attorney for Pierce county. Whether he was or not, it is within the discretion of the trial court to allow special counsel to aid the prosecuting attorney in the trial of a criminal case. State v. Hoshor, 26 Wash. 643, 67 Pac. 386.
(3) On the day of the trial, the state was permitted to endorse the name of J. L. Barck upon the information as a witness for the state. This does not of itself constitute error. The most that appellant could get out of the act of the state would be a continuance, which was not asked for upon this ground. State v. Le Pitre, 54 Wash. 166, 103 Pac. 27.
(5) The next assignments go to the proof of appellant’s testimony which was alleged to be false. This was established by the testimony of the presiding judge who recalled it. The stenographer who had taken notes of the testimony was also produced, and after testifying that his notes were correct, he was permitted to refresh his memory of appellant’s testimony from his shorthand notes. This was permissible. Kellogg v. Scheuerman, 18 Wash. 293, 51 Pac. 344, 52 Pac. 237; State v. Freidrich, 4 Wash. 204, 29 Pac. 1055, 30 Pac. 328, 31 Pac. 332.
(6) Under this assignment, appellant attacks the sufficiency of the proof of the former convictions, and alleges error in its reception in several particulars. To prove the New York conviction, the state introduced a certified copy of the record of the court of general sessions of the city and county of New York, showing on December 26, 1894, a conviction of Frederick Miller of the crime of burglary in the second degree, upon which he was sentenced to a term of ten years in the state’s prison. Norman R. Burdick then testified that he was Bertillon clerk in Clinton state prison, Dannamora,
Two objections are made to this line of testimony. First, that there is nothing to connect the Frederick Miller named in the record of conviction with the Frederick Miller in Clinton state prison. The identity of the appellant with the person named in the record of the New York conviction and the person imprisoned in Clinton state prison was a question of fact for the jury. In State v. Lashus, 79 Me. 504, 11 Atl. 180, it is said, in disposing of a like question: “The identity of names is some evidence of identity of person, more or less potent according to the connecting circumstances. ” In State v. Kelsoe, 11 Mo. App. 91; Id., 76 Mo. 505, in admitting the record as evidence of former conviction, it is said that the record of a conviction of one of the same name raises a presumption that it was the same person. We held in Ritchie v. Carpenter, 2 Wash. 512, 28 Pac. 380, 26 Am. St. 877, that identity of name is prima facie evidence of identity of person. This rule is well established. People v. Riley, 75 Cal. 98, 16 Pac. 544; State v. Griffie, 118 Mo. 188, 23 S. W. 878; Rupert v. Penner, 35 Neb. 587, 53 N. W. 598, 17 L. R. A. 824, and notes; State v. Smith, 129 Iowa 709, 106 N. W. 187, 4 L. R. A. (N. S.) 539, and notes. Lawson on Presumptive Evidence, p. 307, says that identity of name raises a presumption of identity of person, where there is a
It is also said that Page was not shown to be competent to testify to Miller’s handwriting. The witness testified to a familiarity with the handwriting of appellant, and that was all that was necessary to render his testimony admissible. Poncin v. Furth, 15 Wash. 201, 46 Pac. 241.
To prove the Illinois conviction, the state introduced certified records of the criminal court of Cook county, showing an indictment of H. Braun on October 21, 1907, for the crime of burglary, and the transfer of the cause, on January 7, 1907, to the municipal court of Chicago for trial, and conviction and sentence to the state penitentiary at Joliet for a term of years not exceeding the maximum term provided by law for the punishment of such crime. To this was added the testimony of W. W. Howe, who testified that he was connected with the police department of Chicago, and had been for twenty-four years; that he made the arrest of H. Braun in connection with the above indictment, was present at his trial
(7) This assignment goes to the sufficiency of the evidence in overruling a motion for a directed verdict. It has been disposed of by what has already been said.
(8) The last assignment is error in denying a new trial, based chiefly upon the ground of surprise and newly discovered evidence. In support of this motion, counsel for appellant presented to the lower court, at the hearing of the motion, a certified copy of the record in the case of People v. Braun, above referred to, reciting that, on November 5,1907, the judgment against Braun was vacated by the municipal court of the city of Chicago upon the ground that such court had no jurisdiction to enter judgment of confinement in the state penitentiary, and the cause was re-transferred to the criminal court of Cook county, where the defendant was permitted to withdraw his plea of not guilty and enter a plea of guilty of petit larceny, upon which plea he was sentenced to ten months’ imprisonment in the house of correction in
All the several assignments of error made by the appellant have been duly considered. Not finding any error which demands a reversal of this judgment, it is affirmed.
Fullerton, Parker, and Mount, JJ., concur.