State v. Delano

Holcomb, J. This appeal is from a conviction in the lower court on a felony charge and of being an habitual criminal. A sentence of life imprisonment was imposed. On December 19, 1935, appellant was first charged by the prosecutor of the crime of forgery in the first degree in the manner related in the information. On July 18, 1936, by an amended information, he was charged with the same offense by the prosecutor, to which he pleaded not guilty, and counsel (not the *231 present counsel) was appointed for Ms defense. On July 22, 1936, appellant was placed on trial before a jury, wMcb found Mm guilty of tbe offense as charged. After tbe return of tbe verdict of guilty as charged in tbe substantive case, tbe prosecutor, on tbe same day, filed an information against him as an habitual criminal, in that be bad been convicted of tbe crime of grand larceny in tbe superior court of Washington for Pierce county on March 18,1928; also, be bad been convicted, in Lewis county, of tbe crime of grand larceny and on a second count of tbe same information on April 12,1930; that be bad been convicted of tbe crime of grand larceny in Thurston county on March 5,1936; and that be bad been convicted of tbe crime of forgery in tbe first degree on July 22,1936. Appellant was ably and vigorously defended by competent counsel in tbe trial below. Objection was made by him to being forced to immediate trial on tbe habitual criminal accusation. That is now assigned and forcefully argued as tbe first error. In State v. Kirkpatrick, 181 Wash. 313, 43 P. (2d) 44, relied upon by appellant, we said: “Tbe habitual criminal charge may be joined in tbe same information charging tbe substantive crime. If it is so joined, it must be upon a separate sheet of paper and in no wise called to tbe attention of tbe jury during tbe trial of tbe substantive offense. Upon conviction of tbe substantive offense, the habitual criminal charge may then be submitted to tbe same jury without reswearing them.” See, also, State ex rel. Edelstein v. Huneke, 140 Wash. 385, 249 Pac. 784, 250 Pac. 469. That is precisely tbe procedure that was followed by tbe prosecutor in this case. Tbe information upon tbe habitual criminal charge was in no wise brought to tbe attention of tbe jury during tbe trial of tbe felony *232 charge. In fact, it was not filed until the jury had returned its verdict of guilty in the forgery trial. That assignment is therefore untenable. Appellant vigorously contends that he could not possibly have prepared for trial on the habitual criminal charge immediately. He was placed upon the witness stand in his own behalf and admitted that he had been convicted of grand larceny in Pierce county in 1928, in Lewis county in 1930, although he asserted that he had been convicted on one and sentenced on one; and in Thurston county in 1935. Since Rem. Rev. Stat., §2286 [P. C. §8721], prescribes that, if the accused shall have been convicted of two previous felony charges, he may be convicted of being an habitual criminal, we cannot conceive how he could have any possible defense as to the three previous charges of which he admitted having been convicted. Rem. Rev. Stat., §2290 [P. C. §8725], provides that every person convicted of a crime shall be competent as a witness, but the conviction may be proved for the purpose of affecting the weight of his testimony, either by the record or by cross-examination. State v. Nichols, 121 Wash. 406, 209 Pac. 689. See, also, to the same effect, State v. Turner, 115 Wash. 170, 196 Pac. 638, and State v. Burke, 124 Wash. 632, 215 Pac. 31. Even though the accused had not been cross-examined, the records of his prior convictions could have been introduced in evidence. State v. Pielow, 141 Wash. 302, 251 Pac. 586; State v. Dutcher, 141 Wash. 627, 251 Pac. 879. The identity of appellant as the accused in each and all of the former convictions was definitely and positively proven. Since he admitted three of the former convictions, we cannot see how there was any possible *233 prejudice to Mm in proceeding with the trial immediately after the first verdict was determined by the jury. He doubtless knew that the habitual criminal charge would be filed. Two other assignments are argued, have been examined, and are not well taken. There was no error in the proceedings, and the judgment and sentence are affirmed. Steinert, C. J., Tolman, Beals, and Robinson, JJ., concur.