State v. Kelch

Decision Date23 February 1921
Docket Number16257.
CourtWashington Supreme Court
PartiesSTATE v. KELCH.

Department 1.

Appeal from Superior Court, King County; Boyd J. Tallman, Judge.

Charles W. Kelch was convicted of being an habitual criminal and he appeals. Affirmed.

James M. Palmer, of Seattle, for appellant.

Fred C Brown and Jno. A. Frater, both of Seattle, for the State.

HOLCOMB J.

The appellant appeals from a conviction and sentence to life imprisonment upon a charge of being an habitual criminal.

Ten assignments of error are made, which, condensed, are substantially as follows: (1) That appellant should have been sentenced after being convicted of grand larceny and before the second information, charging him with being an habitual criminal, was filed; (2) that the court should have quashed the information charging appellant with being an habitual criminal; (3) that the same judge who tried him on the charge of grand larceny should also have tried him on the charge of being an habitual criminal; (4) that the court which tried him for being an habitual criminal erred in not sentencing him; and (5) that the court which did sentence him, being the same court which tried and convicted him of grand larceny, erred in sentencing him to life imprisonment after being advised by the prosecuting attorney that appellant had been convicted of being an habitual criminal and that the court was wholly without jurisdiction to so pass sentence upon him.

Appellant brings up two records: (1) The conviction of grand larceny after trial before his honor, Judge Jurey, and (2) of a conviction of being an habitual criminal upon three convictions for felony.

The original information is not assailed, and there is no question of the sufficiency of the information or the proceedings upon which he was tried on the charge of grand larceny before Judge Jurey. There is no attack made upon the second information, except upon the ground that the state had no right to file such second or supplemental information prior to appellant's being sentenced upon the conviction of grand larceny by the judge before whom he was tried therefor. Upon his conviction of grand larceny, and before his sentence, the state filed a supplemental or further information charging him with being an habitual criminal from having been three times convicted of crime, as denounced in the statute upon habitual criminals (section 2286, Rem. Code); and upon this second information appellant was tried before another judge of the superior court of King county, his honor, Judge Tallman. Upon his plea to the information he was placed upon trial before a jury, and upon the record was convicted. He was then taken before Judge Jurey, who tried him upon the grand larceny charge, and by him sentenced, as the statute requires, to life imprisonment.

We think there is no merit in any of appellant's contentions. We have, in State v. Driscoll, 86 Wash. 245, 150 P. 2, held that under the previous statutes (section 2178 and 2179, Rem. & Bal. Code), which were superseded by section 2286, Rem. Code ( State v. Gustafson, 87 Wash. 613, 152 P. 335; State v. Cotz, 94 Wash. 163, 161 P. 1191), although the statute made no provision for another judge to try a defendant on a supplemental information, the statute provided that the state shall, before sentence, impanel a jury to try the facts of such former conviction; and that, although the statute made no provision for another judge to try the defendant upon a supplemental information, nevertheless this court took notice of the fact that the superior court of King county is composed of several judges. We concluded that because the facts were determined by different judges of that court it could not be considered that these facts were not determined by the court, and that it was not error for either judge to take into consideration both verdicts in determining what sentence should be pronounced. In that case it was pointed out that Judge Ronald did not skentence the appellant there upon the original trial before Judge Ronald; that a supplemental trial was had, and that Judge Gilliam, before whom the supplemental trial was had, entered the sentence. We held also that it was not necessary to pronounce judgment upon the original conviction before a trial was had on the supplemental information.

The present statute (section 2286, Rem. Code) does not refer to the proceedings against a person as an habitual criminal as supplemental proceedings, or the information as a supplemental information. It simply provides:

'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
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9 cases
  • State v. Waterhouse
    • United States
    • Oregon Supreme Court
    • February 13, 1957
    ...to charge in the same manner. State v. Gustafson, 87 Wash. 613, 152 P. 335; State v. Cotz, 94 Wash. 163, 161 P. 1191; State v. Kelch, 114 Wash. 601, 195 P. 1023; State v. Spencer, 130 Wash. 595, 228 P. "While many questions have arisen under the act it must be admitted that in none of the c......
  • State v. Starrish
    • United States
    • Washington Supreme Court
    • December 11, 1975
    ...proceedings is 'a part of the original felony case,' notwithstanding the characterization of his proceeding in State v. Kelch, 114 Wash. 601, 605, 195 P. 1023, (1921). It is not argued that the underlying felony in this case, second degree assault, does not involve a criminal prosecution. A......
  • Macomber v. State et al.
    • United States
    • Oregon Supreme Court
    • May 20, 1947
    ...we cite Dodd v. Martin, 248 N.Y. 394, 162 N.E. 293, State v. Graham, 68 W. Va. 248, 69 S.E. 1010, 40 L.R.A. (N.S.) 924, and State v. Kelch, 114 Wash. 601, 195 P. 1023. The Dodd case was based upon mandamus to compel the sentencing judge to proceed in harmony with the Baumes Laws; the decisi......
  • State v. Stump
    • United States
    • Washington Supreme Court
    • January 7, 1943
    ... ... when the act of 1909 [supra], was passed ... [132 P.2d 733] ... the prosecutors still continued to charge in the same manner ... State v. Gustafson, 87 Wash. 613, 152 P. 335; ... State v. Cotz, 94 Wash. 163, 161 P. 1191; State ... v. Kelch, 114 Wash. 601, 195 P. 1023.' ... The ... opinion continues: 'While many questions have arisen ... under the act it must be admitted that in none of the cases ... that have so arisen since the act of 1909 [supra], has the ... precise question here presented ... ...
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