Commonwealth v. McDermott
| Decision Date | 12 April 1909 |
| Docket Number | 196 |
| Citation | 224 Pa. 363,73 A. 427 |
| Parties | Commonwealth v. McDermott, Appellant (No. 2) |
| Court | Pennsylvania Supreme Court |
Argued October 26, 1908
Appeal, No. 196, Oct. T., 1908, by defendant, from judgment of Superior Court, April T., 1908, No. 203, affirming judgment of Q.S. Washington Co., Feb. T., 1908, No. 159, on verdict of guilty in case of Commonwealth v. M. M. McDermott. Reversed.
Appeal from the Superior Court.
The opinion of the Supreme Court states the case.
Error assigned was the judgment of the Superior Court affirming the judgment of the court of quarter sessions sustaining a verdict of guilty against the defendant.
Owen C Underwood, with him John M. Haverty and R. H. Meloy, for appellant. -- Conviction means a judgment and not merely a verdict: Smith v. Com., 14 S. & R. 69; Rauch v Com., 78 Pa. 490; People v. Butler, 3 Cowen (N.Y.), 347.
Alex. M. Templeton, with him C. L. V. Acheson, district attorney, and Cyrus Gordon, for appellee. -- Sentence on a verdict of guilty is not essential to conviction, in order to support a conviction for a second offense, where it is imposed before trial and averred in the indictment: Wright v. Donaldson, 158 Pa. 88; York County v. Dalhousen, 45 Pa. 372; Macdonald v. Schroeder, 28 Pa.Super. 128.
Before MITCHELL, C.J., FELL, BROWN, MESTREZAT, ELKIN and STEWART, JJ.
M. M. McDermott was tried and found guilty in the court of quarter sessions of Washington county on November 21, 1907, on an indictment charging him with having sold oleomargarine in violation of the Act of assembly of May 29, 1901, P.L. 327. Motions were made in arrest of judgment and for a new trial, which were overruled on January 31, 1908, and on February 10, 1908, he was sentenced for a first offense under the statute. On January 30, 1908, complaint was made against him, charging him with having unlawfully sold oleomargarine on December 11, 1907, in violation of the act of 1901, and averring that he had previously been convicted of a similar offense at the preceding November Term of the court of quarter sessions of the county. On February 11, 1908, a true bill was returned against him, containing a count that his sale of oleomargarine on December 11, 1907, was his second offense under the statute, as he had been found guilty of having unlawfully sold that article on November 21, 1907, and, on the verdict of the jury, had been sentenced on February 10, 1908, to pay a fine of $200 and costs. On the indictment charging the second offense the appellant was found guilty, and, after a motion in arrest of judgment was overruled, was sentenced to pay a fine and undergo imprisonment in accordance with the provisions of sec. 7 of the act of 1901. The court below was of opinion that the verdict of guilty, returned November 21, 1907, was, in itself, without judgment upon it, a conviction within the meaning of the act of assembly, and if the defendant subsequently before judgment on the verdict, unlawfully sold oleomargarine, he was guilty of a second offense within the meaning of the statute, but that, even if this was not correct, he had been sentenced the day before the bill was returned, charging him with the commission of the second offense. On appeal to the Superior Court this view was sustained, and, on the appeal to us, the question for our consideration is, whether one can be convicted of a second offense under the act of 1901, if, before the time of the alleged commission of that offense, he had not been subjected to judgment on a verdict finding him guilty of a first offense of the same kind.
The sale of oleomargarine, when colored in imitation of butter, is made a misdemeanor by the act of 1901, carrying with it punishment by a fine or imprisonment. A distinct and substantive offense under that act is the sale of colored oleomargarine by one who had previously so offended against the law, and the punishment for this offense is fine and imprisonment. This, of course, means a sale after a former conviction of the same offense, for a law can never be judicially said to have been offended against until the offense against it is established in a court of competent jurisdiction.
The word "conviction" has a popular and a legal meaning. In common parlance a verdict of guilty is said to be a conviction: Smith v. Com., 14 S. & R. 69; Wilmoth v. Hensel, 151 Pa. 200; and this popular meaning has been given to it when rights other than those of the one who has been found guilty have been before the courts. Such are the cases relied upon by the Superior Court in affirming the judgment below. In York County v Dalhousen et al., 45 Pa. 372, the question was as to the liability of the county to pay costs after there had been a verdict of guilty against a defendant who was pardoned before sentence; and so of Wright v. Donaldson et al., 158 Pa. 88, in which Wright, the plaintiff, sued for his fees as a witness on behalf of the commonwealth upon a trial of a prisoner found guilty of a misdemeanor. But a very different situation is presented when one is confronted with an indictment charging him with a prior conviction of a similar offense and the statute makes his alleged repetition of it a distinct crime, for which, upon conviction of it, severer penalties are to be imposed. In such a case the word "conviction" must be given its strict legal meaning of judgment on a plea or verdict of guilty. The severer penalty is imposed by the legislature because that imposed for the first offense was ineffectual. The second offense, carrying with it severer penalties is, therefore, not committed in law until there has been judgment for the first. "When a statute makes a second offense felony, or subject to a greater punishment than the first, it is always implied that such second...
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