170 Ky. 400 | Ky. Ct. App. | 1916
Reversing.
The appellant, Melt Morgan, was indicted for a violation of the provisions of Section 1309, of Kentucky Statutes. The charges in the indictment were not stated in separate counts, but the necessary allegations to constitute a good charge against him for the offense of unlawfully carrying concealed upon or about his person a deadly weapon, other than an ordinary pocket knife, were first set out in the indictment, and following these and before the conclusion of the indictment, as “against the peace and dignity of the Commonwealth of Kentucky, ’ ’ were inserted the following words:
“The grand jury does further charge that the defendant committed the offense of carrying concealed a deadly weapon before the offense hereinbefore stated and for which he has been tried and convicted upon said charge at the present term of this court, and that this is the second offense upon the charge of carrying a concealed deadly weapon in this Commonwealth.”
To this indictment the defendant entered a plea of not guilty, but upon the trial he was found guilty by a verdict of the jury, and sentenced to a term in the penitentiary or State Reformatory by the court. The instructions to the jury, in substance, directed it, that if it believed beyond the influence of a reasonable doubt that the appellant was guilty of carrying a concealed deadly weapon, other than an ordinary pocket knife, to-wit: a pistol, upon or about his person, and further believed that previous to the time of carrying of the weapon, as charged in the indictment, he had been convicted of a similar offense, to find him guilty and fix his punishment at a term of imprisonment in the penitentiary.
The evidence discloses that the first offense, and of which the indictment charges his conviction, was committed upon the 22nd day of February, 1916; that he was indicted for it on the 23rd day of February, and his conviction had on the 3rd day of March, 1916. The offense of unlawfully carrying concealed a deadly weapon, for which he was indicted, in the case at bar, was committed upon the 28th day of February, 1916, and the indictment was returned against him upon the 2nd day of March, following. Following his conviction, his motion for á new trial being overruled, he has appealed to this court.
Section 1309, Ky. Stat., under the provisions of which the prosecution was sought to be had, creates the offense of carrying concealed upon or about the person a deadly weapon, other than an ordinary pocket knife, and prescribes the penalty of one convicted of such offense at a fine in any sum not less than fifty nor more than one .hundred dollars and imprisonment in the county jail for a period not less than ten nor more than forty days, and exclusion from the right of suffrage for two years after the date of the conviction. The statute then prescribes that “any person convicted a second time under this statute shall be confined in the penitentiary for a period of not.less than .one nor more than five years.”
Manifestly, it was the purpose of the enactment of •the statute to lay the heavier penalty for the second offense upon those only whom the penalty for .the first infraction of the law was . not a sufficient corrective. If there was no other purpose of the statute except to punish all alike who.should violate it, there would have been no reason for imposing a heavier penalty, for the commission of the second offense than the commission of the first. For .the one guilty of only one infraction of the law, the ‘penalty denounced for the.first offense was deemed ample. If the offender took warning from ■the reproof of a .first conviction, the great purpose of •the-law has been effected, .and that is to improve.the character of his ■ citizenship. . It was not intended .that '. .the heavier .penalty prescribed .for .the commission of .a second.offense-should descend-upon,any one, except,the
With reference to the contention that the averments of the indictment relative to the first conviction attempted to.be alleged were insufficient to authorize any evidence against the accused under them, it must be borne in mind, that the statute only authorizes the heavier penalty by reason of the accused having been convicted of a violation of the statute previous to the commission of the second offense. The indictment charges Ms guilt of a previous violation of the law. Before the heavier penalty can be inflicted there must be not only a pre- • vious violation of the-law, but a previous conviction of .-its violation. Further, the averments relative to the -prior conviction attempted to be alleged are not sufficient under section 124 of the Criminal Code. They'lack sufficient detail to. give a defendant, notice of' what he is called upon' to answer. The former conviction should be plead with sufficient particularity as to the court in
The evidence of the facts upon which the prior conviction was had should not be given in evidence upon the trial of an indictment for a subsequent ofíense. The prior conviction can only be proven by the record of it, and without the production of the record there is no evidence to go to the jury of a prior conviction. The record of the conviction, and the proof by parol, if necessary, of the identity of the accused with the one shown by the record to have been convicted, is all the evidence necessary or competent, as relates to the prior conviction charged in the indictment. Rector v. Com., 80 Ky. 468; Tall v. Com., 33 R. 541, 110 S. W. 425
For the reasons indicated the judgment is reversed, and the cause remanded for proceedings consistent with this opinion.