State ex rel. Edelstein v. Huneke
| Decision Date | 04 October 1926 |
| Docket Number | 19851. |
| Citation | 140 Wash. 385,249 P. 784 |
| Parties | STATE ex rel. EDELSTEIN v. HUNEKE, Judge. |
| Court | Washington Supreme Court |
On rehearing. Former decision affirmed.
For former opinion, see 244 P. 721.
Chas H. Leavy and Fred J. Schaaf, both of Spokane, for defendant.
The petitioner, Edelstein, was convicted of the crime of burglary. After trial, and before sentence, an information was filed charging him with being an habitual criminal. Before determination of this charge the trial court sentenced petitioner to an indeterminate term in the penitentiary, and set the habitual criminal charge for trial. Application was made to this court for a writ of prohibition to prevent the trial thereof. We denied the writ upon the ground that until the habitual criminal charge had been tried the trial court was unable to determine the sentence mandatorily required by section 2286, Rem. Comp. Stat., and held that the trial should be proceeded with and the whole record brought to this court upon one appeal. State ex rel Edelstein v. Huneke, 244, P. 721.
Upon petition for rehearing a new question was presented to the court which was deemed of sufficient importance to justify a hearing en banc, and opinion thereon. This opinion will be confined to that point alone.
It is the contention of petitioner that the original charge of burglary should have contained the averments of previous convictions that would justify a sentence for being an habitual criminal if it was sought to punish him as such, and that since it contained none it is now too late to try out that question.
The law of 1903 (Laws 1903, p. 125) provided expressly for the practice here followed by the state.
In 1909 the law was changed to section 2286, Rem. Comp. Stat., as follows:
It will be seen that this statute makes no provision for the procedure to be followed in such cases. Petitioner claims that since by section 143, Rem. Comp. Stat., the common law is the rule of decision in this state, and by section 2299, the provisions thereof supplement the penal statutes, in the absence of statutory provision regulating the procedure, we must approve and sanction only that procedure that is rooted in the common law itself. The industry and research of counsel has fortified this argument with a wealth of decisions which announce the principle firmly ingrained in our criminal law that one may not be sentenced for a second offense unless the indictment aver and the evidence prove that it is a second offense. The authorities cited are replete with statements of the court to the effect that, since the punishment is greater for a second offense, such an allegation is a material part of the indictment. No contrary rule appears to be supported by authority.
None of the cases cited, however, appear to determine the precise point presented here, which may be stated as follows: Is any constitutional right of a defendant invaded by charging and trying the two issues separately if no statute prescribes the form of procedure and both be determined before valid sentence passed? It has been the custom in this state to charge defendants in this manner since the passage of the act of 1903. When the act of 1909 was passed the prosecutors still continued to charge in the same manner. State v. Gustafson, 87 Wash. 613, 152 P. 335; State v. Cotz, 94 Wash. 163, 161 P. 1191; State v. Kelch, 114 Wash. 601, 195 P. 1023; State v. Spencer, 130 Wash. 595, 228 P. 689.
While many questions have arisen under the act it must be admitted that in none of the cases that have so arisen since the act of 1909 has the precise question here presented been decided by us, and it is incumbent upon us therefore for the first time to determine this matter. However, a practice long established in this state which neither rests upon nor conflicts with any statutory provision should not lightly be set aside unless a consideration of the reasons urged for its rejection show that some right of petitioner has been violated. This of necessity leads us to the practical question of whether the rights of a defendant are safeguarded by the established procedure, or whether the practice contended for by the petitioner will more nearly approach unto that great end which, although not always attained, is the delight of all courts--namely, a fair trial for all defendants freed from every taint of prejudice.
It seems too plain for argument that to place before a jury the charge in an indictment, and to offer evidence on trial as a part of the state's case that the defendant has previously been convicted of one or more offenses is to run a great risk of creating a prejudice in the minds of the jury that no instruction of the court can wholly erase, and, while appellate courts will presume that the jury has followed the instructions of the court, yet we cannot blind our eyes to the active danger ever lurking in such action. Courts have so recognized this fact that, although finding no error in the charging and showing to the jury upon an original charge the fact of previous convictions, they have frequently adverted to its danger and suggested ways to eliminate that prejudice. In England the matter reached such a point that by statute the principal charge was first...
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