195 Wis. 175 | Wis. | 1928
Lead Opinion
Sec. 165.01 of the Statutes of 1925 is known as the prohibition act. Sub. (32) thereof relates to penalties for violation of the act. After prescribing a penalty for a first offense it provides that “for a second or subsequent offense (the offender) shall be fined in addition to the costs of the action not less than two hundred dollars nor more than two thousand dollars, and be imprisoned in the county jail not less than one month, nor more than one year.” In Faull v. State, 178 Wis. 66, 189 N. W. 274, it was held that the term “offense” as used in this statute meant conviction, so that the aggravated penalty could not be imposed unless the defendant had been previously convicted of an offense against the prohibition act.
In this case the trial was before the court. The court made findings that on the 2d day of March, 1927, the defendant did have in his possession a certain quantity of privately manufactured distilled intoxicating liquor, and that on the llth day of March, 1924, in the said court, the defendant herein entered a plea of nolo contendere to the charge of having in his possession privately manufactured distilled intoxicating liquors, contrary to the statutes of the state of Wisconsin; that such plea was accepted by the court and judgment was entered by the court finding the defendant guilty and sentencing the defendant to pay a fine of $200 and costs, and in lieu of payment of fine to be committed to
It is contended by the defendant that this judgment does not amount to a prior conviction for the reason that it was based upon a plea of nolo contendere. The judgment is a solemn adjudication by a court of competent jurisdiction that the defendant was guilty of having in his possession privately manufactured distilled intoxicating liquor, contrary to the provisions of the statutes of the state of Wisconsin. This judgment is conclusive between the parties as to the facts therein adjudicated. The effect of this judgment between the parties depends in no manner upon the proceedings which led up to the rendition of the judgment. The force and effect of the judgment is just the same whether the defendant pleaded guilty, was found guilty by the verdict of a jury, or whether judgment followed a plea of nolo con-tendere. The force of a judgment in a collateral proceeding does not depend upon the nature of the proceedings resulting in the judgment. The plea of nolo contendere is an implied confession. Judgment of conviction follows such a plea as a matter of course, yet the plea itself contains no admissions which can be used against the defendant in another action. For this reason it is a plea favorable to the defendant. It is a plea which he may not interpose as a matter of right. It is received at the discretion of the court. It is a plea, however, from which a judgment of conviction follows as inevitably as such a judgment follows a plea of' guilty. While a plea of guilty amounts to an express admission of the defendant which may be used against him in another case, the plea of nolo contendere contains no admission which may be so used. There is no difference, however, in the nature, character, or force of the judgment following such pleas. They are both solemn adjudications of guilt, and we see no reason why judgment of conviction following a plea of nolo
By the Court. — Question No. 1 is answered No; question No. 2 is answered Yes.
Dissenting Opinion
(dissenting). That a judgment is a judgment must be and is freely conceded, but that does not, by any means, solve the question that was here presented.
Under the constitution, art. I, sec. 16, a person may not be imprisoned, as in olden days he could be, upon a judgment for debt arising out of or founded on an express or implied
I am dissenting because I think that in construing the statute here providing for an increased punishment for second convictions there should be again recognized the substantial, inherent, and natural distinction between a conviction upon the plea of nolo contendere and one following a trial upon the merits after a plea of not guilty, or following a plea of guilty which takes the place of such a trial. The latter is the judgment of conviction obtained in almost all criminal cases where acquittal or discharge is not the final result. It is a fairly safe venture to say that such are the nine hundred and ninety-nine out of a thousand convictions, and that such would be the reaction to the term “conviction” in the mind of one of the laity or of one learned in the law.
The very fact mentioned by the majority opinion supra, that “the plea (nolo contendere) itself contains no admissions which can be used against the defendant in .another action,” shows the substantial distinction between a conviction on that plea and the conviction after trial or plea of guilty. The distinction between the two is pointed out in White v. Creamer, 175 Mass. 567, 568, 56 N. E. 832; State v. LaRose, 71 N. H. 435, 443, 52 Atl. 943; and Chester v. State, 107 Miss. 459, 65 South. 510; Tucker v. U. S. 196 Fed. 260, 41 L. R. A. n. s. 70, and was recognized in Birchard v. Booth, 4 Wis. 67, 73.
It is held not a proper plea for the court to accept in a capital case (Comm. v. Shrope, 264 Pa. St. 246, 107 Atl.
Since as early as sec. 3, ch. 132, R. S. of 1849, subsequently appearing as sec. 4609 and now sec. 353.01, Stats., express provision has been made as to what is necessary to support a conviction, reading that no person indicted or informed against for an offense “shall be convicted thereof unless by confession of his guilt in open court, or by admitting the truth of the charge against him by his plea or demurrer, or by the verdict of a jury accepted and recorded [by the] in court.”,
I submit that in passing upon- the question of what is a conviction under such a statute as here involved, or sec. 325.19, infra, the impeaching statute, the above express statutory definition of conviction should be followed, and that therefore the nolo contendere plea interposed in the prior case was not the statutory plea “admitting the truth of the charge against him.”
While the early decisions in Douglass v. State, 3 Wis. 820, that no judgment of guilty in a criminal case can be rendered where there is neither arraignment nor plea, and in Davis v. State, 38 Wis. 487, that it is beyond the power of the court to order a plea of not guilty to be entered without defendant’s consent, have been limited or overruled in Hack v. State, 141 Wis. 346, 353, 124 N. W. 492, yet it has never been held in this court, prior to the present case, that there is now no substantial distinction between a plea of guilty admitting the truth of the charge and one which does not so admit.
It would seem that if a conviction upon the plea of nolo contendere can now be properly used, as is held by the majority here, to increase the punishment upon conviction after trial or plea of guilty in a subsequent prosecution, that it
The plea being one that the court need not accept, when accepted, however, it should carry with it no more than its well recognized attributes and limitations, and though it may ripen into a judgment, yet its special identity is not thereby submerged or entirely lost.
