Section 2915.111 provides punishment as for a misdemeanor “for a first offense” and punishment as for a felony (i. e., imprisonment for a maximum term of more than one year. See Sections 1.05 and 1.06, Revised Code) “for each subsequent offense.”
Defendant contends that he cannot he convicted as a subsequent offender because his second violation of the statute occurred before and not after his conviction for the first violation thereof. In other words, he contends and the Court of Appeals held that a violation of the statute could not bea“ subsequent offense,” within the meaning of this statute, unless such violation occurred after defendant’s conviction for a previous violation of the statute.
The effect of this contention and of this holding is either (1) to read the words “first offense” where they occur in the statute as though they read “first conviction” or (2) to insert in the statute a requirement, not expressed therein, i. e., that, in order to be a “subsequent offense,” an offense must occur “after a conviction for a first offense.”
The ordinary meaning of the word “offense” is “the doing that which a penal law forbids to be done or omitting to do what it commands.” On the other hand, a “conviction” is “that legal proceeding which ascertains the guilt of the party upon which the sentence or judgment is founded.” Bouvier’s Law Dictionary (Baldwin’s Century Ed. 1940). In other words, a conviction is a legal ascertainment that an offense has been committed. A conviction is not an essential element of an offense although an offense is always a prerequisite to a conviction.
Thus, it would be necessary, in order to affirm the judgment of the Court of Appeals, either to give other than their ordinary meaning to the words “first offense” in the statute or to add words to the statute which the statute does not contain.
As stated in State v. Dale (1900),
As stated in State v. McCormick (1928), 104 N. J. Law 288,
In support of the Court of Appeals judgment, defendant has referred to Hawkins v. State (1928),
None of these authorities represent a holding or support the conclusion that there can be no conviction for a ‘ ‘ subsequent offense” which occurred before a conviction for a prior offense.
Larney v. City of Cleveland (1878),
Carey v. State (1904),
In the instant case, the indictment does “allege a previous conviction.”
However, the first sentence of paragraph two of the syllabus of the Carey case states further that “the term ‘offense’ as used” in a statute in a manner similar to its use in the statute involved in the instant case “is the equivalent of conviction.” This dictum, when taken out of context, would appear at first to support defendant’s position. However, as indicated in the opinion at page 125, the term “second offense” would then mean “second conviction.”
Thus, if the statute in the instant case is rewritten in accordance with the dictum in the first sentence of paragraph two of the Carey case, it would provide punishment as for a
Certainly, the Carey case cannot support in any way a reasonable conclusion that the words in the statute involved in the instant case, “first oífense,” can be interpreted to read “first conviction” without then having the words “subsequent offense” made to read “subsequent conviction.”
We recognize that there are authorities outside Ohio which hold that similar statutory provisions require that an offense must occur after conviction for a prior offense in order to be a subsequent offense. See 25 American Jurisprudence 266, Section 12; 24B Corpus Juris Secundum 466, Section 1960 (5) (b); annotation, 24 A. L. R. 2d 1247, 1249. However, for the reasons hereinbefore stated, we are of the opinion that it is not necessary in order to have a conviction for a subsequent offense under Section 2915.111, Revised Code, that such subsequent offense should occur after a conviction for a first offense. The judgment of the Court of Appeals must, therefore, be reversed and that of the Common Pleas Court affirmed.
Judgment reversed.