State v. Kirkpatrick

• Decision Date: 02 April 1935
• Docket Number: 25295.
• Citation: 181 Wash. 313,43 P.2d 44
• Parties: STATE v. KIRKPATRICK.
• Court: Washington Supreme Court

43 P.2d 44

181 Wash. 313

STATE v. KIRKPATRICK.

No. 25295.

Supreme Court of Washington, En Banc.

April 2, 1935

Appeal from Superior Court, Thurston County; John M. Wilson, Judge.

Gordon Kirkpatrick was convicted of burglary in the second degree grand larceny, and of being an habitual criminal, and he appeals.

Reversed and remanded for new trial.

H. L. Parr, of Olympia, and Adam Beeler, of Seattle, for appellant.

Smith Troy, E. A. Philbrick, and Harold P. Troy, all of Olympia for the State.

BLAKE Justice.

In an information containing three counts, defendant was charged with the crimes (1) of burglary in the second degree, (2) of grand larceny, and (3) of being an habitual criminal. He was tried on all three counts at the same time, was found guilty on all three, and sentenced to life imprisonment. He appeals assigning error in the following particulars: The joining in the same information of the charge of being an habitual criminal with the charges of burglary in the second degree and grand larceny; and the presentation of all three offenses to a jury in a single trial.

The question has never been presented to us in this exact form. The subject, however, was exhaustively examined and discussed in the case of State ex rel. Edelstein v. Huneke, 140 Wash. 385, 249 P. 784, 785, 250 P. 469. There is no distinction between that case and this, except that the contention there made by the relator (defendant) is here made by the state. In that case, Edelstein, who had theretofore been convicted of the crime of burglary in the second degree, was charged in a separate information with being an habitual criminal. He applied to this court for a writ of prohibition to prevent the lower court from proceeding with the trial of the habitual criminal charge. His contention was that, in order to try one under a statute denouncing an aggravated penalty for a second or third offense, the facts pertinent thereto must be set up in the same information charging the substantive crime. This was the practice at common law, and is the practice prevailing in most of the states. People v. Sickles, 156 N.Y. 541, 51 N.E. 288; Maguire v. State of Maryland, 47 Md. 485; State v. Findling, 123 Minn. 413, 144 N.W. 142, 143, 49 L. R. A. (N. S.) 449. There being no statute prescribing the procedure in such cases, it was relator's contention in that case (and is the state's position in this) that we are bound to follow the common-law practice. This court, however, declined to take the position that the common-law practice should be inflexibly applied in this state. While it was held in that case only that it was not necessary to couple the habitual criminal charge in the same information with the substantive offense, the reasoning by which the holding was arrived at is equally, or even more, applicable to the situation in the instant case. The court there said: 'It seems too plain for argument that to place Before a jury the charge in an indictment, and to offer evidence on trial as a part of the state's case that the defendant has previously been convicted of one or more offenses is to run a great risk of creating a prejudice in the minds of the jury that no instruction of the court can wholly erase, and, while appellate courts will presume that the jury has followed the instructions of the court, yet we cannot blind our eyes to the active danger ever lurking in such action. Courts have so recognized this fact that, although finding no error in the charging and showing to the jury upon an original charge the fact of previous convictions, they have frequently adverted to its danger and suggested ways to eliminate that prejudice.'

The court then cited with approval the practice prescribed by the Supreme Court of Connecticut, in the case of State v Ferrone, 96 Conn. 160, 113 A. 452. That practice is simply this: The habitual criminal charge may be joined in the same information charging the substantive crime. If it is so joined, it must be upon a separate sheet of paper and in no wise...