State v. Furth

• Decision Date: 01 August 1940
• Docket Number: 27956.
• Citation: 5 Wn.2d 1,104 P.2d 925
• Parties: STATE v. FURTH.
• Court: Washington Supreme Court

104 P.2d 925

5 Wn.2d 1

STATE v. FURTH.

No. 27956.

Supreme Court of Washington

August 1, 1940

Department 1.

Oscar Furth was convicted of petit larceny and was sentenced as an habitual criminal, and he appeals.

Reversed.

Appeal from Superior Court, King County; Donald A. McDonald, judge.

Maurice Kadish, of Seattle, for appellant.

B. Gray Warner and John C. Merkel, both of Seattle, for respondent.

MILLARD Justice.

The prosecuting attorney of King county filed an information April 22, 1939, charging Oscar Furth with commission of the crime of petit larceny in King county, April 19, 1939. Trial of the defendant to a jury resulted in verdict June 12, 1939 of guilty as charged. The prosecuting attorney filed a supplemental information August 18, 1939, charging defendant was an habitual criminal by reason of two prior convictions of crime. The cause was stricken from the trial calendar and an amended supplemental information filed November 20, 1939 accusing Oscar Furth, as follows, of being an habitual criminal 'He, said Oscar Furth, under the name of Joe Webber, in the District Court for the State of Utah, on the 14th day of August, 1925, was duly and legally convicted of the crime of Burglary in the Third Degree, said crime amounting to and being a felony at that time and at all times since under the laws of the State of Washington.

'He, said Oscar Furth, under the name of Oscar Furth, in the United States District Court for the Western District of Washington, Northern Division, on the 7th day of February, 1936, was duly and legally convicted of Unlawful Possession of Narcotics, said crime amounting to and being a felony at that time and at all times since under the laws of the State of Washington.

'He, said Oscar Furth, under the name of Oscar Furth, in the Superior Court of the State of California, City and County of San Francisco, on the 10th day of June, 1922, was duly and legally convicted of the crime of Unlawful Possession of Narcotics, said crime amounting to and being a felony at that time and at all times since under the laws of the state of Washington.'

To the amended supplemental information the defendant pleaded not guilty and requested trial by jury. The defendant's request for trial by jury on the charge of being an habitual criminal was denied on the ground that, while issues of fact were raised, the defendant was not charged with a crime. The court said:

'If the habitual criminal angle of this case was required to be submitted to a jury, that would end it. That matter goes merely to the penalty. The man had a trial by jury on the crime. There are two issues, of course, whether there were previous convictions, and if this is the man that was convicted. Your right to a jury of course is unquestioned where there is a charge of crime, but this merely goes to the matter of punishment.

'In the absence of any supplemental information the statute provides the penalty, but when brought to the attention of the court there have been these previous convictions, then the court imposes the augmented penalty.

'* * * The man will be given a chance to defend himself and to offer evidence. In other words, there are two issues here, the previous convictions must be established, and is this the man who was convicted in these previous judgments, and on that, of course, he is entitled to have a hearing.'

Our first habitual criminal statute (chapter 86, Laws of 1903, p. 125, Rem. & Bal.Code, §§ 2177, 2178) provided for trial by jury of 'the fact of such former conviction or convictions.' Our present habitual criminal statute (chapter 249, Laws of 1909, p. 899, § 34, Rem.Rev.Stat. § 2286), which repealed chapter 86, Laws of 1903, reads as follows:

'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.'

Trial was had to the court sitting without a jury. A witness from the identification bureau of the office of the sheriff of King county by comparison of the finger prints of defendant with finger prints from the records of the Utah state penitentiary identified defendant as the Oscar Furth, alias Joe Webber, who was convicted in the state of Utah of the crime of burglary in the third degree and confined therefor in the Utah state penitentiary. Defendant objected to the evidence on the ground that no showing was made of defendant's commitment to, or release from, the Utah state penitentiary. The court found that defendant was duly and legally convicted in the state of Utah of the crime of burglary in the third degree; that said crime then and at all times since amounted to a felony in this state, and that defendant is an habitual criminal. Judgment and sentence were entered accordingly. Defendant appealed.

Counsel for appellant first contends that no showing was made that appellant was convicted of a crime elsewhere which under the laws of this state would amount to a felony, therefore the court erred in holding that the crime of third degree burglary--there is no crime so designated in this state--in the state of Utah is a felony in this state.

Whether burglary in the third degree is a felony in this state is determined by the laws of this state. If the indictment or information on which one is convicted states facts sufficient to constitute a felony within this state the conviction comes within the meaning of Rem.Rev.Stat. § 2286, which reads in part as follows, and the pertinent portion of which we have italicized: '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, * * * shall be adjudged to be an habitual criminal * * *.'

The information on which Joe Webber, an alias of defendant, was convicted charges the accused with the 'crime of Burglary in Third Degree, committed as follows, to-wit:' 'The said defendant on August 11, 1925, in the day time, at the county of Weber, state of Utah, wilfully, unlawfully, feloniously and burglariously broke and entered the room of one George Fotos, said room being in the Panama Rooming House, situate at No. 2514 Lincoln Avenue, Ogden, Utah, with intent to commit larceny * * *.'

A comparison of the foregoing information with our statute, reading as follows, discloses that the crime of burglary in the third degree in the state of Utah is the same as the crime of burglary in the second degree, a felony, in this state: 'Every person who, with intent to commit some crime therein shall, under circumstances not amounting to burglary in the stances not amounting to burglary in the first degree, enter the dwelling-house of committed a crime therein, shall break out of, any building or part thereof, or a room or other structure wherein any property is kept for use, sale or deposit, shall be guilty of burglary in the second degree and shall be punished by imprisonment in the state penitentiary for not more than fifteen years.' Rem.Rev.Stat. § 2579.

Error is next assigned on denial of appellant's request for trial by jury on the charge of being an habitual criminal.

Counsel for the State argue that the original habitual criminal statue (chapter 86, Laws of 1903, Rem. & Bal.Code, §§ 2177, 2178), which provided for trial by jury of the habitual criminal charge, was repealed by our present habitual criminal statute (section 34, chapter 249, Laws of 1909, Rem.Rev.Stat. § 2286), in which there is no provision for trial by jury of the charge of being an habitual criminal, therefore appellant was not entitled to a trial by jury. It is insisted that appellant was not entitled to a trial by jury under section 22, Article I, of the state constitution, which guarantees the right to trial by jury where the defendant is charged with the commission of an 'offense,' inasmuch as being an habitual criminal is not a criminal offense. This position, urges counsel for the state, is in harmony with the concurring opinion in State v. Cotz, 94 Wash. 163, 161 P. 1191, which was incorporated into the opinion in State v. Kelch, 114 Wash. 601, 605, 195 P. 1023, to the effect that the habitual criminal statute does not require a charge of a substantive crime necessitating submission of the question of prior convictions to a jury, but that the only question involved is a state of the record, either in the court where the charge is made, or some other court, and that the only plea open to one so charged is that of nul tiel record, or that the judgment has been satisfied in some way recognized by law.

State v. Cotz, supra, is...