State v. Gustafson

• Decision Date: 28 October 1915
• Docket Number: 12618.
• Citation: 152 P. 335,87 Wash. 613
• Parties: STATE v. GUSTAFSON.
• Court: Washington Supreme Court

152 P. 335

87 Wash. 613

STATE v. GUSTAFSON.

No. 12618.

Supreme Court of Washington

October 28, 1915

Department 2. Appeal from Superior Court, King County; Kenneth Mackintosh, Judge.

Gus Gustafson was convicted of being a habitual criminal, and he appeals. Reversed.

A. G McBride, of Seattle, for appellant.

Alfred H. Lundin and Lane Summers, both of Seattle, for the State.

MORRIS C.J.

Appellant having been convicted below of the crime of being a habitual criminal, appeals.

Three errors are assigned. The first two, if sustained, call for a dismissal; the third, for a reversal. First, it is contended that the information does not state facts sufficient to constitute a crime. Without setting out the information, it will be sufficient to say that, allowing for the difference in the nature of the crime charged, the charging part of the information is identical with that sustained in State v. Rowan, 146 P. 374.

The second claim of error is that appellant was not brought to trial within five days after the service of the information. This contention is based upon sections 2177 and 2178, Rem. &amp Bal. Code, which are sections 1 and 2 of the act of 1903, fixing the penalty for persons convicted a second and third time of felony, and are as follows:

'It shall be the duty of the prosecuting attorney of any county, as soon as he has knowledge that a person indicted or informed against for felony, has been once or twice before convicted of any crime which under the laws of this state would amount to a felony, either within this state or elsewhere, to file and serve upon such person another information, setting fourth [forth] the fact of such former conviction or convictions, with the time and place when and where such former convictions occurred.' Section 2177, Rem. & Bal. Code.

'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 immediately, if such further information was served before the trial upon the principal charge, or if served after the commencement of the trial then within five days and before sentence, impanel a 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.' Section 2178, Rem. & Bal. Code.

Answering this contention, the state asserts that the information was filed under section 2286, Rem. & Bal. Code, which is section 34 of the Criminal Code as adopted in 1909. This section reads:

'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.'

Comparing these different provisions, it will be noted that the act of 1903 applies to felonies. The previous convictions must be for felonies committed within this state or elsewhere, and the information pending in this state must charge a felony except that in section 4 the act is enlarged, so as to embrace a charge of petit larceny against a person twice before convicted of petit larceny or a felony. The act of 1909 embraces any crime of which fraud or intent to defraud is an element, petit larceny,...