Opinion
No. 26148. Department One.
August 21, 1936.
CRIMINAL LAW (460) — PUNISHMENT OF SUBSEQUENT OFFENSES — HABITUAL CRIMINAL CHARGE — VALIDITY. A charge or accusation of being an habitual criminal is specially provided for in Rem. Rev. Stat., § 2286.
SAME (460). The charge of being an habitual criminal need not be joined with a substantive offense, but when pled and proven, the statute provides for judgment and sentence of being an habitual criminal.
CONSTITUTIONAL LAW (122) — DUE PROCESS OF LAW — CRIMINAL PROSECUTIONS — HABITUAL CRIMINAL ACT. Under the habitual criminal statute, Rem. Rev. Stat., § 2286, making no provision for the procedure, there is no violation of the due process clause of the constitution.
SAME (91) — RETROSPECTIVE AND EX POST FACTO LAWS — HABITUAL CRIMINAL ACT. The habitual criminal statute, Rem. Rev. Stat., § 2286, is not an ex post facto law as to offenses committed long after the enactment of the law.
Appeal from a judgment of the superior court for Spokane county, Witt, J., entered February 1, 1936, upon a trial and conviction of being an habitual criminal. Affirmed.
E.R. Lindsey, for appellant.
Ralph Foley, Carl P. Lang, and Harvey Erickson, for respondent.
George Fowler was convicted by a jury, in the superior court for Spokane county, of the crime of grand larceny, on December 5, 1935. Thereupon, prior to the entry of any judgment on the verdict, an information was filed against him, under Rem. Rev. Stat., § 2286 [P.C. § 8721], charging him with being an habitual criminal on account of having been convicted of the grand larceny charge, just referred to, and four prior convictions of petit larceny, particularly describing the several convictions. Upon a plea of not guilty in the habitual criminal prosecution, the jury brought in a verdict in which they found the defendant guilty of being an habitual criminal, and further found that the defendant had been convicted of petit larceny four times prior to December 4, 1935.
Thereupon judgment and sentence were entered against the defendant as being an habitual criminal. He has appealed.
[1] The first assignment of error is that the judgment and sentence are void as being unknown to the laws of the state. A charge or accusation of this kind, however, is specially provided for in Rem. Rev. Stat., § 2286 [P.C. § 8721]. The verdict of guilty supports the judgment and sentence.
[2] The second assignment of error is that the court had no jurisdiction to try the case or pronounce judgment and sentence, there being nothing set forth in the information charging a crime known to the laws of the state or to confer jurisdiction on the court to hear and try and sentence the defendant.
The statute, just referred to, provides for judgment and sentence of being an habitual criminal where the facts required under the statute are pled and proven. This assignment, as argued, goes mostly to the procedure adopted, the contention being that, because the information does not charge something which per se is a crime, there can be no prosecution or conviction. Our decisions, however, are to the contrary. The procedure, approved in State ex rel. Edelstein v. Huneke, 140 Wn. 385, 249 P. 784; State v. Kirkpatrick, 181 Wn. 313, 43 P.2d 44, and State v. Plautz, 185 Wn. 578, 55 P.2d 1057, was followed in the prosecution in the present case. [3] Under another assignment, it is again argued that the whole procedure is contrary to the due process of law clause of the fourteenth amendment to the Constitution of the United States. We held, however, in State ex rel. Edelstein v. Huneke, supra, that no right of a defendant was violated by the statute and procedure applicable in such cases.
[4] It is finally claimed that the statute, together with the procedure, amounts to ex post facto law, and is void. There is no merit in this argument. The statute was enacted long before appellant started his career of crime, and the procedure meets with the expressed approval of this and other courts, as shown by cases already cited and others therein mentioned.
Judgment affirmed.
MILLARD, C.J., TOLMAN, STEINERT, and GERAGHTY, JJ., concur.