State v. Delano, 26454.

• Decision Date: 29 January 1937
• Docket Number: 26454.
• Parties: STATE v. DELANO.
• Court: Washington Supreme Court

64 P.2d 511

189 Wash. 230

STATE v. DELANO.

No. 26454.

Supreme Court of Washington

January 29, 1937

Department 2.

Appeal from Superior Court, Thurston County; D. F. Wright, Judge.

Lynn Delano, alias Emerl Lynn Delano, alias Lyman Delano, was convicted of crime of forgery in first degree, and of being an habitual criminal, and he appeals.

Affirmed.

Smith Troy and E. A. Philbrick, both of Olympia, for appellant.

Daniel S. Bigelow and Wallace G. Mills, both of Olympia, for the State.

HOLCOMB Justice.

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 present counsel) was appointed for his defense. On July 22, 1936, appellant was placed on trial Before a jury which found him guilty of the offense as charged.

After the return of the verdict of guilty as charged in the substantive case, the prosecutor, on the same day, filed an information against him as an habitual criminal in that he had been convicted of the crime of grand larceny in the superior court of Washington for Pierce county on March 18 1928; also, he had been convicted, in Lewis county, of the crime of grand larceny and on a second count of the same information on April 12, 1930; that he had been convicted of the crime of grand larceny in Thurston county on March 5 1936; and that he had been convicted of the crime of forgery in the first degree on July 22, 1936.

Appellant was ably and vigorously defended by competent counsel in the trial below. Objection was made by him to being forced to immediate trial on the habitual criminal accusation. That is now assigned and forcefully argued as the first error.

In State v. Kirkpatrick, 181 Wash. 313, 43 P.2d 44, 45, relied upon by appellant, we said: 'The habitual criminal charge may be joined in the same information charging the substantive crime. If it is so joined, it must be upon a separate sheet of paper and in no wise called to the attention of the jury during the trial of the substantive offense. Upon conviction of the substantive offense, the habitual criminal charge may then be submitted to the same jury without reswearing them.' See, also, State ex rel. Edelstein v. Huneke, 140 Wash. 385, 249 P. 784, 250 P. 469.

That is precisely the procedure that was followed by the prosecutor in this case. The information upon the habitual criminal charge was in nowise brought to the attention of the jury during the trial of the felony 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...