State v. Edelstein

Decision Date22 December 1927
Docket Number20687.
Citation262 P. 622,146 Wash. 221
PartiesSTATE v. EDELSTEIN.
CourtWashington Supreme Court

Appeal from Superior Court, Spokane County; Witt, Judge.

Isadore R. Edelstein was convicted of burglary in the second degree and, on supplemental information, was convicted of being an habitual criminal, and sentenced to life imprisonment pursuant to Rem. Comp. Stat. § 2286, and he appeals. Affirmed.

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

Chas W. Greenough, A. O. Colburn, and Fred J. Schaaf, all of Spokane, for the State.

PARKER J.

The defendant, Edelstein, was, by information filed by the prosecuting attorney for Spokane county on the 9th day of October, 1925, in the superior court for that county, charged with the crime of burglary in the second degree, as follows:

'That the said defendant, Isadore R. Edelstein, in the county of Spokane, state of Washington, on or about the 23d day of July, 1922, then and there being, did then and there willfully, unlawfully, and feloniously, with intent to commit a crime therein, break and enter a certain room and structure, to wit, a vault on the ninth floor of the Paulsen building, said building located at the corner of Riverside avenue and Stevens street, in the city and county of Spokane, Wash., said vault then and there being a structure wherein property was kept for use and deposit. That said Isadore R. Edelstein, from and after the 23d day of July, 1922, up to and including the 2d day of October, 1925, was not usually and publicly resident within the state of Washington.'

This concluding allegation was for the purpose of avoiding the barring of the prosecution by lapse of time following the alleged commission of the crime. The defendant was arrested in San Francisco, and soon thereafter, on October 30, 1925, brought to Spokane, and, having been duly arraigned to answer to the charge of the information, pleaded not guilty. On December 9, 1925, his trial upon that charge was commenced in the superior court for Spokane county sitting with a jury, and resulted, on December 16, 1925, in a verdict of guilty, as charged, being rendered against him. On January 2, 1926, the prosecuting attorney for Spokane county filed in the superior court for that county another information, supplemental to the former information, charging the defendant with being an habitual criminal, as follows:

'That the said defendant, Isadore R. Edelstein, alias J. R. Edelstine, on or about the 11th day of August, 1913, in the county of Greene, state of Missouri, in the criminal court of said county and state, in cause No. 56770, under the name of J. R. Edelstine, was then and there duly and legally convicted of the crime of burglary, the same being a felony at that time and at all times since under the laws of the state of Washington. * * * That the said defendant, Isadore R. Edelstein, alias J. R. Edelstine, on or about the 4th day of January, 1919, in the county of King, state of Washington, in the superior court of said county and state, in cause No. 9169, under the name of Isadore Edelstein, was then and there duly and legally convicted of the crime of burglary in the second degree, the same being a felony at that time and at all times since under the laws of the state of Washington. That the said defendant, Isadore R. Edelstein, alias J. R. Edelstine, on or about the 16th day of December, 1925, in the county of Spokane, state of Washington, in the superior court of said county and state, in cause No. 9044, was duly and legally convicted of the crime of burglary in the second degree, the same being a felony at that time and at all times since under the laws of the state of Washington.'

The conviction last so charged is the conviction by the verdict of the jury above noticed as the substantive conviction; judgment and sentence not then having been rendered thereon. Other prior convictions were charged in this supplemental information, but the prosecuting attorney elected to proceed only upon the two mentioned in the above-quoted language thereof. There then followed unsuccessful efforts by prohibition proceedings in this court in behalf of the defendant to prevent the superior court from proceeding with his trial upon the habitual criminal charge under the supplemental information. These efforts appear in state on the relation of Edelstein v. Huneke, Judge of the Superior Court, reported in 138 Wash. 495, 244 P. 721, and 140 Wash. 385, 249 P. 784, 250 P. 469, which decisions are of moment touching some legal problems to be hereafter noticed, though of no moment as facts in this controversy. The superior court having overruled the defendant's plea in abatement, demurrer and motion to quash directed against the habitual criminal charge, on April 1, 1927, he entered his plea of not guilty of the charge of being an habitual criminal. On April 8, 1927, trial upon that charge commended, resulting in a verdict of a jury as follows:

'Find the defendant guilty of being an habitual criminal, and further find that said defendant has been convicted of a felony two times prior to December 16, 1925.'

Thereafter, the defendant's motion for arrest of judgment, and, in the alternative, for a new trial, being overruled, the superior court, on April 26, 1927, rendered final judgment against the defendant, sentencing him to life imprisonment in the penitentiary, in pursuance of the provision of section 2286, Rem. Comp. Stat. From this final disposition of the case, upon the substantive and supplemental charges, the defendant has appealed to this court.

The principal outstanding facts of this case, as we think the jury were warranted in viewing them, and as they evidently did view them, may be summarized as follows: The Paulsen building in Spokane is a large 11-story office building, having its main front entrance to the north on Riverside avenue, and a side entrance through a stairway into its basement to the west on Stevens street. There is maintained in the building, on each of the ten office floors opening into the hall, a vault with private compartments therein for the use of tenants; each tenant being assigned a separate compartment. The main door of each vault is locked with a Yaletown combination lock. The inside compartments are all locked with keys furnished to the several tenants; the keys so furnished to each tenant being capable only of locking and unlocking the one compartment assigned to such tenant. There was a master key, securely kept by the management of the building, by the use of which all of the private compartments could be unlocked. During the business hours of business days, that is, days other than Sundays and holidays, the main vault doors were, by the building management, kept open so that the mechanism of the combination locks attached to the inside of the doors was exposed to view, and readily accessible, though not so exposed that there could be any reading of the numbers of the combination so as to learn the combination without removing a portion of the mechanism. The mechanism of these locks was such that the vital parts thereof could readily and quickly be removed, by one skilled in lock mechanism, from the inside of the doors, and then readily taken apart and the combination numbers read. Thus one so skilled could readily learn the combinations, and be enabled to unlock the doors from the outside. One so skilled could also readily replace the parts so removed without leaving any evidence of the mechanism having been disturbed. The vital parts of the mechanism, capable of being so removed, are so small in volume that they might be absent from a door a considerable period, possibly hours, during the business hours of the day, without their absence being noticed.

A considerable number of the private compartments in the vaults were unoccupied; that is, not assigned to any tenants at the time of, and for some time prior to, the burglary. The doors of a number of such compartments were unlocked, and were left standing ajar, so that the mechanism of the locks on the inside of such doors was readily accessible to any one in the vaults wherein such compartment doors were unlocked and stood ajar. The mechanism of those locks could readily have been removed from any of such doors unlocked and standing ajar, and even taken out of the building, without such removal being discovered for a considerable time, even for days. One skilled in the use and manipulation of such locks could, by taking apart one of them after its removal and examining its mechanism, make a master key with which all of the private compartments or all of the vaults could be unlocked as readily as they could be unlocked by the master key kept by the building management. The information acquired by so removing and examining the mechanism of one of those locks and the making of a master key capable of unlocking all of them could be accomplished in less than an hour. One expert witness said that this could be done in 30 minutes under favorable conditions.

The burglary was committed some time between the closing of the vault doors at the early closing business hours of Saturday July 22, 1922, and the opening of the vault doors at the beginning of business hours on the morning of Monday, July 24, 1922. The particular burglary charged and relied upon by the prosecution for a conviction of the defendant consisted of the opening of the vault door on the ninth floor of the building, followed by the opening of several of the private compartments in that vault, and taking therefrom money and Liberty bonds, postal savings stamp certificates, and diamonds, aggregating large value. The prosecution proceeded principally upon the theory that the defendant committed the...

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