State v. Jackovick

• Decision Date: 13 October 1960
• Docket Number: No. 35205,35205
• Parties: STATE of Washington, Respondent, v. Albert B. JACKOVICK, Appellant.
• Court: Washington Supreme Court

Page 915

56 Wn.2d 915

355 P.2d 976

STATE of Washington, Respondent, v. Albert B. JACKOVICK, Appellant.

No. 35205.

Supreme Court of Washington, Department 1.

Oct. 13, 1960.

Maurice Kadish, Seattle, for appellant.

Charles O. Carroll, August F. Hahn, Seattle, for respondent.

HILL, Judge.

This is an appeal from a conviction of armed robbery, and from a sentence of life imprisonment imposed for that offense in consequence of a finding that the appellant was an habitual criminal. The habitual criminal statute is attacked as unconstitutional, and a question is raised as to whether two prior out-of-state convictions were of crimes which are felonies in this state. Unlawful search and seizure and right to counsel are also suggested as issues.

The evidence of guilt in the armed robbery case was overwhelming. The amount taken in the robbery of a food store was in excess of $3,200. Prior to his arrest a car, traced to the possession of the appellant, had been seen leaving the store; and pictures of the appellant had been identified as those of the robber. The officers, who arrested him at his sign shop, searched the shop and his car, which was parked behind it, as an incident to the arrest. Approximately $2,600 together with other incriminating evidence, was found.

A motion (made and argued by court-appointed counsel) to suppress the evidence, as being obtained by an unlawful search and seizure, was denied. This constitutes a claim of error.

At the trial, appellant was represented by other counsel of his own choice. When the evidence, which appellant had sought to suppress, was offered at the trial no objection was made. This constituted a waiver of the motion to suppress. State v. Hartness, 1928, 147 Wash. 315, 265 P. 742.

But, beyond any question of waiver, it is clear that the officers who made the arrest believed, and had every reason to believe, that the appellant had committed a felony and that he had fled the scene in the car found parked back of his shop. It is well established that officers have a right, as incident to a lawful arrest, to search the person arrested and the area where the arrest is made. State ex rel. Fong v. Superior Court for King County, 1948, 29 Wash.2d 601, 188 P.2d 125; State v. Lindsey, 1937, 192 Wash. 356, 73 P.2d 738; State v. Thomas, 1935, 183 Wash. 643, 49 P.2d 28; State v. Evans, 1927, 145 Wash. 4, 258 P. 845.

Appellant makes the customary attacks on the habitual criminal act as being unconstitutional for lack of both due process and equal protection under the law.

We have heretofore considered these contentions and found them to be without merit. Frye v. Delmore, 1955, 47 Wash.2d 605, 288 P.2d 850; State v. West, 1939, 197 Wash. 595, 86 P.2d 192; State v. Fowler, 1936, 187 Wash. 450, 60 P.2d 83; State v. Edelstein, 1927, 146 Wash. 221, 262 P. 622; State ex rel. Edelstein v. Huneke, 1926, 138 Wash. 495, 244 P. 721; 140 Wash. 385, 249 P. 784, 250 P. 469; State v. LePitre, 1909, 54 Wash. 166, 103 P. 27.

In support of its contention that the appellant has the status of an habitual criminal, the state alleged four prior felony convictions. Two of them were for offenses committed in this state: armed robbery and second-degree burglary, each of which had resulted in his imprisonment in the Washington State Penitentiary. Two were for offenses committed in Minnesota: burglary in the third degree and grand larceny in the second degree, each of which had resulted in his imprisonment in the Minnesota Penitentiary.

Each of the four convictions was proved by an exemplified copy of the judgment and sentence together with an exemplified copy of the penal institution records, including, in each instance, the finger prints of the appellant. The jury found, by answers to four special interrogatories--one relating to each of the four prior convictions alleged--that the appellant was the person named in each of the four prior convictions.

The two prior felony convictions in Washington, together with the conviction of armed robbery in the instant case, established the appellant's status as an habitual criminal under RCW 9.92.090, and we do not need to consider whether third-degree burglary and second-degree grand larceny, as defined by the Minnesota statutes, constitute felonies in the state of Washington now and at the time the offenses were committed.

However, we will consider appellant's claim that because there was no evidence that the Minnesota offenses charged were felonies in Washington, the Minnesota convictions should not have been submitted to the jury. Clearly, the proof of the Minnesota law was not a matter to be submitted to the jury.

The Uniform Judicial Notice of Foreign Laws Act, adopted by this state in 1941 (RCW, chapter 5.24), provides:

'The determination of such laws [laws of every state, territory and other jurisdiction of the United States] shall be made by the court and not by the jury and shall be reviewable.' RCW 5.24.030.

This has long been the rule in Washington. Rood v. Horton, 1924, 132 Wash. 82, 89, 231 P. 450.

The trial court made the determination, as required by the statute, and the jury was instructed that each of the crimes referred to in the prior convictions alleged in the habitual criminal proceeding 'is now and was, at the time of the claimed conviction and at all times since, a felony in the State of Washington.'

It is also provided in the Uniform Judicial Notice of Foreign Laws Act that

'The court may inform itself of such laws in such manner as it may deem proper, and the court may call upon counsel to aid it in obtaining such information. [1941 c 82 § 2; Rem.Supp. 1941 § 1279.]' RCW...