State v. Cress

• Decision Date: 17 December 1942
• Docket Number: 28753.
• Citation: 15 Wn.2d 661,131 P.2d 955
• Parties: STATE v. CRESS.
• Court: Washington Supreme Court

131 P.2d 955

15 Wn.2d 661

STATE v. CRESS.

No. 28753.

Supreme Court of Washington

December 17, 1942

Department 2.

Joseph W. Cress was convicted under an information charging him with felonies upon six counts, and he appeals.

Affirmed.

Appeal from Superior Court, Spokane County; Fred H. Witt, judge.

Harold M. Gleeson, of Spokane, for appellant.

C. C Quackenbush and Edward J. Lehan, both of Spokane, for respondent.

BLAKE Justice.

September 24, 1929, the prosecuting attorney of Spokane county filed an information, in cause numbered 9986, charging appellant with felonies upon six counts: two of robbery, three of assault in the first degree, and one of arson in the first degree. On October 12, 1929, a jury found him guilty on all six counts. An order was entered October 26th denying a motion for new trial.

October 29th, in cause numbered 10026, the prosecutor filed an information charging Cress with being an habitual criminal. This charge was predicated on the conviction mentioned above, a conviction of second-degree murder, entered upon his plea of guilty Before the superior court of Spokane county March 27, 1912, and a conviction of first-degree burglary, entered in the superior court of Whitman county March 15, 1924.

Upon the charge of being an habitual criminal, appellant was convicted by a jury on December 6, 1929. He interposed a motion for new trial, which was denied December 14th. Sentence was pronounced, and judgment entered in cause No 10026 on the same date. On January 7, 1930, Cress served and filed notice of appeal, in cause numbered 10026, 'from those certain judgments and sentences and each and every part thereof heretofore entered in the above-entitled Court and cause on the verdicts of the juries herein.' (Italics ours.) Sentence had not been pronounced nor had judgment been entered in cause No. 9986.

Failing to perfect his appeal in cause No. 10026, Cress was committed to the state penitentiary at Walla Walla under life sentence. Conceiving that he was held without due process of law, he made application to this court on November 7, 1941, for a writ of habeas corpus. We held that the sentence and judgment entered in cause numbered 10026 was void, saying: 'The petitioner could have been sentenced, and should have been sentenced, for life in Cause No. 9986, when taken in connection with the facts found by the jury in Cause No. 10026, and, for aught that now appears, he may still be lawfully so sentenced.' Ex parte Cress, 112 Wash.----, 123 P.2d 767, 769. Accordingly, an order was entered transferring Cress from the custody of the warden of the state penitentiary to the sheriff of Spokane county. The purpose of the order was to give the superior court of Spokane county an opportunity to pronounce sentence and enter judgment in cause 9986.

Upon petition of the prosecuting attorney, the court called Cress Before it on April 14, 1942, and imposed sentence of life imprisonment, and entered judgment accordingly in cause No. 9986. From this judgment and sentence, Cress appeals.

Appellant makes four assignments of error, three of which challenge the jurisdiction of the superior court to pronounce the sentence and enter the judgment of April 14, 1942, in cause No. 9986. We shall not discuss questions raised by these assignments, since they were fully discussed and decided adversely to appellant upon his application to this court for a writ of habeas corpus. Ex parte Cress, supra.

The remaining contention is that the lapse of twelve years between...