86 W. Va. 655 | W. Va. | 1920
Lead Opinion
The sufficiency of the indictment upon demurrer, the sufficiency and competency of the proof offered by the state upon the trial and admitted over defendant’s objection, and the pro
In charging the principal offense, the one for which defendant is now unde,r conviction, the indictment follows the form prescribed by section 3 of the chapter cited-; but the draftsman attempted'to charge two former convictions against defendant for violations of the same section, the first by a participial phrase immediately following the description of the violation for which he was last indicted, the phrase being in these words “He, the said Joe Savage, having been prior to the date of committing said offense and preyiously thereto been convicted of' a like offense in the criminal court of Fayette County, West Virginia, on the 28th day of April, 1917,'" and sentenced to confinement in the county jail of said county for and during a pe-' riod of six months, and to pay a fine of $100.00 and costs.”
The other former conviction is charged in this language:
“And the grand jurors aforesaid, upon their oaths aforesaid, do further present that the said Joe Savage was, prior to the date of the commission of the offense first hereinbefore mentioned and also prior to the date of the conviction hereinbefore set out, convicted by O. L. Ballard, a justice of the peace of' Fayette County, West Virginia, upon á charge of a like offense, to-wit: for unlawfully manufacturing, selling, keeping, offering, storing and exposing for sale and solicit and receiving orders for liquors and absinthe and drink compounded of absinthe, against the peace and dignity of the State.”
According to all the decisions and text writers dealing with the subject and examined by us, the rule is that to. subject a person indicted for a second offense to a superimposed penalty because of a former conviction, when authorized by statute, the indictment must directly aver such a conviction with particularity and definiteness, at least to an extent sufficient to advise the accused of the charges he must be prepared to meet, and to enable the, court to determine whether or not the statute applies.
The requirement for directness and particularity in describing the former conviction and sentence as a result of the proceedings had before, the criminal court of Fayette County, April 28, 191.7, the indictment ignores. The averment as to that.,-conviction- is inserted- merely as a parenthetical observation, or as a recital,-not-as a positive and direct charge, though the re^ cital does disclose th.e, imposition -of a sentence of fine and imprisonment -in the coupty jail. But the prior conviction - of the .'accused, - as .ascertained; by Ballard, is stated in the; indictment .with all- the. directness, particularity and precision required by.law., except as to the sentence imposed} if such an averment is requisite, .as. it; fully and completely advises the accused of the facts necessary to warrant the trial court to add the increased. penalty,• should he again be convicted of the main charge preferred against him, and should the state prove and the jury ascertain the facts to be- as therein averred, both as. to- the main -charge and the conviction by Ballard. State v. Hoilman, supra; State v. Goldstrohm, supra.
The averment of the, indictment charging the conviction of deféndant last mentioned is silent as to the sentence imposed Upon him as punishment for the offense. Ordinarily the sern-tenee is no part of- the conviction, but is based on it. However, where a former conviction for the same offense Is made, ’the ground of some disability or special penalty, it is held generally that, the-word' “conviction” includes within its meaning the finality attributed to a judgment, and for that reason necessitates-the pronouncement of sentence upon the verdict in order to., obtain ,a judgment that is final, so far as the trial court, is concerned. Com. v. McDermott, 224 Pa. 363; Smith v. Com., 14. Serg. & R. (Pa.) 6.9; Faunce v. People, 51 Ill. 311; 16 C. J. pp. 1266, 1267, 1341, §§ 30.02, 3155. A defendant cannot be
There is, moreover, a consensus of opinion among courts and authors that defective averments concerning former conviction, to warrant an increase of the penalty for a subsequent conviction, do not vitiate an indictment or subject it to a successful
Defendant contends that the failure of the state to offer in evidence the record proof of the former conviction was prejudicial error necessitating reversal, despite his voluntary admission of such prior conviction in open court. In tMs connection the statute provides: “It shall be the duty of the prosecuting attorney in all cases to ascertain whether or not the charge made by the grand jury is the first or second offense; and if it be a second offense, it shall be so stated in the indictment returned, and the prosecuting attorney shall introduce the record evidence before the trial court of said offense, and shall not be permitted to use his discretion in charging said second offense, or in introducing evidence and proving the same on the trial.” If he must produce and offer the record evidence of the former conviction, no just rule of law excuses the direct averment of a fact necessary to prove.
The purpose of this provision evidently is to make it the imperative duty of a prosecuting attorney, who otherwise might be inclined to laxness in the prosecution of offenses involving-additional'penalties, and might for that reason fail to do so, to charge and prove former convictions of defendant for the same offense, when such fact comes to his knowledge. But where the defendant, by voluntary and unretracted admission in open court, confesses the prior conviction, properly averred, there is apparent no sound reason of law or policy for requiring formal proof of such fact. The Legislature did not intend to impose a vain and useless duty upon a prosecuting officer. Its only object was to make plain the requirement that such former conviction must be established for the purpose of subjecting successive offenders to additional deterrent penalties. When such fact is admitted voluntarily in open court and not retracted, the
Nor are there two counts in the indictment, as defendant contends. Considered as a whole and without reference to the former conviction therein attempted to bo averred, the indictment prefers but one charge against the, accused. That part of it which it is argued is a second count charges no violation of law. Its office and function is to show a conviction before Ballard, the justice, and does that only by way of authorizing the infliction of a superadded penalty in the event defendant is found guilty of the main charge.
But one witness, Cliff Tatum, festifi.es to the sale by defendant to himself and two other hoys who accompanied Mm, and who together, according to his testimony, purchased, paid for and drank the mixture called “Skebo”. He also says it was intoxicating because it intoxicated him almost as soon as he drank it. Savage not only denied making the sale but said what he had for sale and sold to other customers would not produce intoxication, however much the purchaser drank; and in this respect other witnesses examined in his behalf corroborated him. Evidently for the purpose of strengthening Tatum’s testimony as to the sale charged, A. B. Burgess, who also testified in chief for the state, tvas permitted over objection to say he saw Tatum in an intoxicated condition while on his way home, on the roadway leading in that direction from Savage’s place of business about a quarter of a mile distant. Tatum fixed the time of the purchase of the intoxicating liquor, if such it was, on an afternoon sometime between Christmas, 191S, and March, 1919. He seems to have been unable to be more definite. This state
The first instruction asked by the state, and given, defendant insists should not have been read to the jury, because when read it told them that defendant had admitted an adjudication of his guilt of a former violation, April 28, 1917, of the same statute, as finally adjudged against him by the, criminal court of Pay-ette County. This admission he did make, it is true, as appears from the record, after the jury was sworn to try the case. But as we have seen and stated, this conviction was net properly averred in the indictment, and for that reason no admission by defendant in that regard could legally bind him. In other words, the indictment must state the former conviction with sufficient-precision to sustain, a conviction by the verdict of a jury, before such an admission or confession of guilt, though made upon the trial, would bind the, accused. His confession amounts only to an admission of record of the truth of whatever is sufficiently charged in the indictment. State v. Kelley, 206 Mo. 685; Fletcher v. State, 12 Ark. 169; Arbintrode v. State, 67 Ind. 267; 2 Wharton’s Grim. Proc. (10th Ed.), § 1.341. The instruction should not have. beeD given.
Nos. 2 and 4 are not as liberal as instruction Ho. 4 condemned in State v. Price, 83 W. Va. 71, 79, for they do, in effect require the jury to.predicate their finding upon “the evidence, and
■ For these reasons our order will reverse the ■ judgment, set aside the verdict, and award defendant a new trial.
Reversed and■ remanded.
Dissenting Opinion
(dissenting in part):
I cannot concur in so much of the opinion in this case as holds the indictment insufficient to charge a felony because it fails to allege the sentence, inflicted upon the defendant upon the former conviction. It is held in the opinion that when the legislature used the word “conviction” it meant not only that the accused party was found guilty, but that a judgment was rendered upon such finding, but when this word is used .in an indictment found under the act of the legislature the court is unable to determine what the pleader meant, or, rather, that the word must be given its ordinary meaning, that is, that the accused party was simply found guilty without any judgment ever having been pronounced upon such finding. That the word conviction in a statute like this means not only a finding, by the jury, or other tribunal, that the accused is guilty, but that a judgment has been pronounced uppn such finding,' is beyond question. 2 Words & Phrases, p. 1585; 1 Words & Phrases (see. ser.) p. 1043. I am unable to understand why a word when used in an act of the legislature has such a definité and certain signification, and when used in an indictment dra.wn .under that act has no definite and certain meaning, or is so indefinite and uncertain in its meaning that the court cannot tell what is