dissenting:
In a criminal case the burden rests with the state to prove the defendant guilty beyond a reasonable doubt. That principle is deeply imbedded in our history and has, I think, been violated here. Positive proof of identity is readily available to the state. Fingerprinting is routine procedure. Other evidence — less positive, but strong — photographs and testimony of witnesses, is normally within reasonable reach of the state’s investigative power. These considerations, when balanced against the real possibility of grave error flowing from the assumption of identity from name alone, compel me to require more of the prosecution. I would hold that there is a failure of proof, not only with respect to the main charge (Gravatt v. United States, 260 F.2d 498 (10th Cir. 1958)) but with respect to the habitual hearing as well (People v. Casey, 399 Ill. 374, 77 N.E.2d 812 (1948); People v. Stewart, 23 Ill.2d 161, 177 N.E.2d 237 (1961)). This being so, the failure to object, for lack of *355foundation, to the exemplified record offered during trial, is of no consequence.
NRS 207.010(6) concerning habitual criminals, states that “presentation of an exemplified copy of a felony conviction shall be prima facie evidence of conviction of a prior felony.” That provision does not touch the issue at hand. Before that statute is operative, proof of identity beyond a reasonable doubt must first be offered. Once that is accomplished, other evidentiary items of the exhibit (type of prior felony, where committed, identity of sentencing court, etc.) may be prima facie evidence of the facts they purport to show. The heavy punishment prescribed for the recidivist demands that care be used in the handling of records to establish identity.
We must always be aware that the rule here announced will govern future cases. Our main concern is with the justice of the rule rather than with the result of the case in which the rule is proclaimed. I fear that the principle announced by my colleagues (identity from name alone may be deemed proof beyond a reasonable doubt) may, before long, result in a grave miscarriage of justice.
I dissent.