State v. KinneyState v. Kinney
- Reporters:
- , ,
- Before:
- Burch
Defendant was convicted upon an information charging the sale of intoxicating liquor. The informаtion did not charge that the act was a second offense, but during’ the trial of the case on cross-examination it appeared! that defendant had been convicted of a priоr offense of the same character. A dаy or two after the verdict of guilty and before sеntence, the state’s attorney obtained an order to show cause why the defendant should not he sentenced as for a second offense. The application for the order to show cause was supported by an affidavit оf the state’s attorney and by the records of the conviction of the first offense. After hearing the order To show cause, the. court sentenсed defendant as for a second offensе to- imprisonment in the penitentiary for a term оf 18 months.
The only assignment of error is that the court erred in imposing sentence. The Attorney General in his brief for the respondent admits that the court was without jurisdiction to so’ sentence appellant, and suggests that the judgment should be set aside and thе cause remanded to the trial court for а proper sentence.
We think there cаn be no question that the court did not have jurisdictiоn to sentence the appellant to thе penitentiary, where his conviction was upon an information charging a misdemeanor punishable only by fine and imprisonment in the county jail. The grеat weight of authority supports the doctrine that where a first offense is a misdemeanor, and а second or subsequent offense of the same character is a felony, a former cоnviction is an essential element of the seсond or subsequent offense charged as a fеlony, and, being an essential element of the сrime, must be alleged in the information and provеd on the trial. State v. Schaller, 49 S. D. 398, 207 N. W. 161; Paetz v. State, 129 Wis. 174, 107 N. W. 1090, 9 Ann Cas. 767. See, alsо, 14 R. C. D. 190, § 35, and citations there given. But the pronouncing оf a void sentence does *523not oust the court of jurisdiction to pronounce a valid one, and where the court has exceeded its аuthority in pronouncing sentence tíre judgment may bе vacated and the cause remanded for a valid sentence. State v. Schaller, 49 S. D. 398, 207 N. W. 161; Territory v. Conrad, 1 Dak. 363 (348), 46 N. W. 605; Bedell v. State, 50 Miss. 492; Thomas v. State, 73 Miss. 46, 19 So. 195; Washington v. State, 76 Miss. 270, 24 So. 309; State v. Johnson, 94 N. C. 863; People v. Johnson, 71 Cal. 384, 12 P. 261; People v. Eppinger, 114 Cal. 350, 46 P. 97; State v. Child, 42 Kan. 611, 22 P. 721; Hussy v. People, 47 Barb. (N. Y.) 504; Watson v. State, 2 Wash. 504, 27. P. 226.
The judgmеnt appealed from is therefore revеrsed, and the cause is remanded to the trial court, with directions to sentence defendant as and for a first offense of the crime charged.
POEEEY, SHERWOOD, CAMPBELL, and BROWN, JJ., concur.