State v. Driscoll

• Decision Date: 13 July 1915
• Docket Number: 12479.
• Citation: 86 Wash. 245,150 P. 2
• Parties: STATE v. DRISCOLL.
• Court: Washington Supreme Court

150 P. 2

86 Wash. 245

STATE v. DRISCOLL.

No. 12479.

Supreme Court of Washington

July 13, 1915

Department 1. Appeal from Superior Court, King County; Mitchell Gilliam and J. T. Ronald, Judges.

Joseph Driscoll was convicted of robbery, and, being sentenced upon a verdict finding him an habitual criminal, he appeals. Affirmed.

George McKay and Thomas B. MacMahon, both of Seattle, for appellant.

John F Murphy and S. H. Steele, both of Seattle, for the State.

MOUNT J.

The appellant, Joseph Driscoll, and two others were jointly charged with the crime of robbery. Upon a trial all three of the defendants were found guilty by a verdict of a jury. After this verdict was returned and before sentence, a supplemental information was filed, charging the appellant Driscoll with being an habitual criminal. The trial upon the charge of robbery was before Hon. J. T Ronald, one of the judges of the superior court for King county, and the trial of the supplemental information was referred to and had before Hon. Mitchell Gilliam and a jury. This trial before Judge Gilliam resulted in a verdict finding the appellant guilty of being an habitual criminal. Thereupon Judge Gilliam entered an order adjudging 'that said defendant is guilty of being an habitual criminal as charged in the information.' Thereafter Judge Ronald took into consideration the judgment of Judge Gilliam, and sentenced the appellant to the penitentiary for a period of not less than 10 nor more than 25 years. This appeal is taken from that judgment.

Several errors are assigned in the appellant's brief, but most of these alleged errors were disposed of in State v Conroy, 82 Wash. 417, 144 P. 538, which was an appeal by Conroy from the judgment entered in the original case, to which the appellant in this case was a defendant. We are satisfied with our conclusion upon these points, and shall therefore not consider them further.

The only assignment in this case not discussed in the Conroy appeal is that the law does not authorize the trial of the original action to be had by one judge and the trial of the supplemental charge by another judge. The statute relating to a case of this kind is found at section 2178, Rem. & Bal. Code, and is as follows:

'If the defendant pleads guilty to the principal charge, or, if after trial, he shall be found guilty of such principal charge by a jury, unless the defendant admit the fact of such former conviction or convictions, the court shall * * * before sentence, impanel by jury to try the fact of such former conviction or convictions, and if such jury find, from the record thereof, or other competent evidence that such person has been once or twice before convicted of a crime, which under the laws of this state would amount to a felony, such jury shall make a return of such fact to the court. In case that such jury find that such person has been but once before convicted of a felony, the return shall show the time of his sentence under such former conviction.'

And section 2179 provides:

'In every case where a person is convicted of a felony and the jury impaneled for that purpose, in the manner provided in section 2178, find that the person has been once before convicted of a crime, either in this state or elsewhere, which under the laws of this state would amount to felony * * * he shall be sentenced to a term

...