State ex rel. Edelstein v. Huneke

• Decision Date: 07 April 1926
• Docket Number: 19851.
• Parties: STATE ex rel. EDELSTEIN v. HUNEKE, Superior Court Judge.
• Court: Washington Supreme Court

244 P. 721

138 Wash. 495

STATE ex rel. EDELSTEIN v. HUNEKE, Superior Court Judge.

No. 19851.

Supreme Court of Washington

April 7, 1926

Department 1.

Application for writ of prohibition by the State, on the relation of Isadore Edelstein, against William A. Huneke, as Judge of the Superior Court of Spokane County. Writ denied.

Turner Nuzum & Nuzum, Edward M. Connelly, and Groff & Davis, all of Spokane, for plaintiff.

Chas H. Leavy and A. O. Colburn, both of Spokane, for defendant.

ASKREN J.

The prosecuting attorney of Spokane county filed an information charging the defendant, Edelstein, with the crime of burglary. Upon trial the jury returned a verdict of guilty. Motions in arrest of judgment and for a new trial were duly filed. On January 2, 1926, after such motions had been overruled and denied, the prosecutor filed an information alleging that the defendant was an habitual criminal, based upon six felony convictions prior to the burglary conviction. Upon arraignment defendant requested further time in which to plead. On the 8th day of January defendant was sentenced on the burglary charge to serve a term of from 5 to 15 years in the state penitentiary, from which sentence defendant immediately appealed to this court. Thereafter defendant filed a demurrer, motion to quash, and a plea in abatement to the information alleging that he was an habitual criminal, all of which were overruled or denied. On February 16, defendant entered a plea of not guilty, and the cause was set for trial on March 10.

Application was then made to this court for a writ of prohibition to prevent the superior court of Spokane County from proceeding with the trial, or, in the alternative, for a stay of proceedings until this court should decide the appeal which was being prosecuted in the burglary charge. An alternative writ was issued. The superior court answered the alternative writ, setting forth the facts hereinbefore stated, asking that it be permitted to proceed with the trial of the question as to whether defendant was an habitual criminal.

It is the contention of the defendant that upon the trial of the habitual criminal information the state must of necessity offer evidence of the conviction on the burglary charge; that while he has been convicted and sentenced upon such charge the appeal pending in this court nullifies the validity of the conviction until this court has passed upon the merits of the appeal; that he has no plain, speedy, and adequate remedy by appeal because if he is found to be an habitual criminal the court would sentence him to life imprisonment; that if this court should reverse the conviction or dismiss the burglary charge on appeal he would be in the anomolous position of being found to be an habitual criminal based on previous convictions, the most essential one, however, being invalid. Much of the strength of this contention lies in the acceptance of the record as it stands showing a sentence by the superior court upon the burglary charge and if such sentence be valid. But we think the sentence so imposed was invalid because it was premature, and that the appeal based thereon was of necessity also premature under the circumstances. The applicable statute is section 2286, Rem. Comp. Stats., which reads:

'Every person convicted in this state of any crime of which fraud or intent to defraud is an element, or of petit larceny, or of any felony, who shall previously have been convicted, whether in this state or elsewhere, of any crime which under the laws of this state would amount to a felony, or who shall previously have been twice convicted, whether in this state or elsewhere, of petit larceny, or of any misdemeanor or gross misdemeanor of which fraud or intent to defraud is an element, shall be adjudged to be an habitual criminal and shall be punished by imprisonment in the state penitentiary for not less than ten years.

'Every person convicted in this state of any crime of which fraud or intent to defraud is an element, or of petit larceny, or of any felony, who shall previously have been twice convicted, whether in this state or elsewhere, of any crime which under the laws of this state would amount to a felony, or who shall previously have been four times convicted, whether in this state or elsewhere, of petit larceny, or of any misdemeanor or gross misdemeanor of which fraud or intent to defraud is an element, shall be punished by imprisonment in the state penitentiary for life.'

We think it quite plain under our previous decisions and the statute here involved (section 2286, Rem. Comp. Stats.) that to justify a determination that one is an habitual criminal there must not only be a certain number of prior convictions as specified in the statute, but there must be one conviction immediately prior thereto, and upon which the defendant has not been sentenced. To hold otherwise would be to place it in the power of the prosecutor at any time after conviction and sentence, and even after the service of sentence, to file such a proceeding, and in effect to require a defendant to be punished twice for the same offense. The purpose of the filing of an habitual criminal information is to place the court in a position when it gets ready to pronounce sentence to determine the previous record of the defendant, and, based upon the immediately preceding conviction and prior convictions, to impose the mandatory sentence required by the statute.

It will be observed from the facts detailed that after motions in arrest of judgment and for a new trial had been denied, and before defendant was sentenced upon the burglary charge, an information was filed charging him with being an habitual criminal. We think that while this charge was pending before the court it was without power to sentence defendant upon...