298 S.W. 704 | Ky. Ct. App. | 1927
Reversing.
In May, 1926, the grand jury of Boyd county indicted appellant and defendant below, Marie Neal, accusing her of unlawfully possessing intoxicating liquor in violation of our statute known as the Rash-Gullion Act (Laws 1922, c. 33). An attempt was made in the indictment to allege a previous conviction of a violation of the same act so as to bring it within the last paragraph of section 2554a-2 of the 1922 edition of Carroll's Kentucky Statutes, which paragraph provides for a felony punishment for a second violation of certain designated sections of the statute. Defendant's demurrer filed to the indictment was overruled with exceptions and her motion to require the Commonwealth to elect whether it would prosecute her for the misdemeanor charge for the last-alleged offense, or for the attempted felony charge made therein, received a like fate, followed by exceptions. The trial resulted in a conviction with an attached punishment of defendant by confinement in the penitentiary for one year. Her motion for a new trial was overruled, and, from the judgment sentencing her to the penitentiary, she prosecutes this appeal.
The only language in the indictment with reference to the first conviction is in these words:
"This is the second offense for violation of chapter 33, Acts of the 1922 Legislature, known as the Rash-Gullion Act, enacted March 22, 1922; she having heretofore been convicted in the police court of the city of Ashland, Boyd county, Ky., of the offense of possessing whisky unlawfully and not for sacramental, scientific, mechanical, or medicinal purposes in the commonwealth of Kentucky, against the peace and dignity of the commonwealth of Kentucky."
Passing the manifest informality of alleging and presenting the first conviction, and accepting it as sufficient for the purposes of this opinion, it will be observed that it nowhere avers that the alleged first offense was committedafter the taking effect of the statute in 1922. Neither is it alleged that the first conviction was after the taking effect of that act, and we have uniformly held, in construing the felony paragraph of section 2554a-2, supra, that a failure to make such allegations in the indictment was fatal. Some of the cases so construing the *241
statute are Blanton v. Commonwealth,
The rule applicable to the trial of indictments is that a requisite allegation therein cannot be supplied by proof of the fact, if the indictment did not contain such necessary allegation; in other words, the rule is that proof without allegation applies to trials under indictments the same as in civil cases. The court therefore erred in admitting the introduction of any testimony for the purpose of establishing the first conviction which was attempted to be charged in the indictment but so defectively as to be fatal thereto. We might close this opinion at this point, were it not for the fact that on a return of *242 the case the indictment might be resubmitted and a new one found correcting the errors herein pointed out, and because of that possibility we will discuss and determine the only other remaining question in the case.
It is stipulated in the record thus:
"It is admitted by the commonwealth's attorney that Marie Neal has been convicted in this court for possessing liquor, and that said case is now in the Court of Appeals, and that same has not yet been passed upon by that court."
Defendant's counsel contends that, inasmuch as the judgment on the first charge was suspended by the appeal bond executed by defendant in appealing from that judgment to this court, with that appeal still pending at the time of the trial herein, the judgment of conviction in the circuit court on the first charge was not final so as to render it competent to enlarge her second violation into a felony within the meaning of the statute, and which contention we think is correct.
That the first conviction, in order to be available under "habitual criminal statutes" must be final at the time it is invoked in the enforcement of the felony provisions of the statute there can be no question. It is so stated as the correct rule in the text of 16 C. J. 1341, par. 3155, and we have been unable to find any pronouncement by a court or text-writer to the contrary. The question then narrows to the point as to whether a suspension of the execution of the judgment of conviction for the first violation, by appealing therefrom to a court of review as provided by the law of the forum, postpones the finality of the judgment so as to render it unavailable pending the appeal in trials of subsequent prosecutions under habitual criminal statutes, as is the one here involved. The text of the volume of Corpus Juris supra, 1342, par. 3161, directly bearing upon the point, says:
"Where an appeal from a former conviction is pending, the record of such conviction is not admissible in evidence for the purpose of showing that defendant is guilty of a second offense."
The correctness of that rule was endorsed by the Supreme Court of Kansas in the case of State v. Volmar,
"A sufficient answer to this is that, in the administration of justice, under our procedure, no judgment of an inferior tribunal can be deemed to finally adjudge the rights of the parties when the person against whom it is entered prosecutes within the time and in the manner allowed by law an appeal to a court having jurisdiction to revise it. . . . Upon the whole, we are of the opinion that the fair meaning of the constitutional provision allowing an appeal carries with it the right to suspend the judgment; and that, during the pendency of the appeal, neither the judgment imposing the fine nor vacating the office becomes effective."
In the case of Foure v. Commonwealth,
"Gillis had been convicted a second time under this indictment, and his appeal was pending at the time of this trial. He was introduced as a witness for defendant, and on cross-examination was required to answer that he had been convicted of a felony, although it was shown that an appeal was *244 then pending in his case. While in a proper case a witness may be impeached by asking him as to his being convicted for a felony, here this was error for two reasons: First, the Code provision (section 597, Civil Code), authorizing such impeachment, refers to a judgment of conviction, which of course means the final judgment. Ordinarily this refers to the judgment of the circuit court, but an appeal in a criminal case suspends the judgment, which does not become final until a termination of the appeal. If the witness' case is reversed and on final trial he should be acquitted, it will not be contended that on a subsequent trial he could be impeached by showing such conviction, and during the pendency of the appeal it cannot be determined what the final judgment shall be."
See, also, the text in 8 R. C. L. 274, par. 289, wherein it is said, inter alia:
"An erroneous (first) conviction (under an habitual criminal statute) is voidable merely and not void, and, until proper steps are taken to secure its reversal, it will stand and be as effective as a conviction free from error."
The inference therefrom is that, if "proper steps are taken to secure its reversal," it will not be effective as a conviction for the purpose of enlarging the punishment on a second one. We thus see that, according to acknowledged text-writers, a suspended judgment of conviction by appealing therefrom takes away from it the quality of finality so as to render it efficacious as a final conviction, and it was by analogy so held by us in the Hazelrigg and Foure cases, supra. In the former the appeal was from a misdemeanor conviction, while the latter involved an appeal from a felony conviction. If, as in the Foure case, an appeal from a conviction for a felony rendered the judgment incompetent for the purpose of impeaching the defendant as a witness under the provisions of section 597 of the Civil Code, a fortiori, would a superseded appeal from a misdemeanor conviction render it incompetent as evidence in proof of a necessary fact to convert what would otherwise be a misdemeanor into a felony.
The soundness of what we have said is forcibly illustrated by what transpired since the trial of this case, and of which we are made aware by taking judicial notice of *245
our own records, and of being so informed by counsel for both defendant and the commonwealth in their briefs. That information is that, on March 8, 1927, the first conviction of defendant was reversed by us in Neal v. Commonwealth,
For the reasons stated, the judgment is reversed, with directions to set it aside and to sustain the motion for a new trial, and for further proceedings consistent with this opinion.