Paetz v. State

• Decision Date: 21 June 1906
• Citation: 107 N.W. 1090,129 Wis. 174
• Parties: PAETZ v. STATE.
• Court: Wisconsin Supreme Court

129 Wis. 174

107 N.W. 1090

PAETZ

v.STATE.

Supreme Court of Wisconsin.

June 21, 1906.

Error to Circuit Court, Dane County; E. Ray Stevens, Judge.

Herman Paetz was convicted of selling liquor without a license, and brings error. Reversed and remanded.

On the 26th day of January, 1904, the plaintiff in error was convicted in the circuit court of Dane county of the offense of selling intoxicating liquor in violence of section 1550, Rev. St. 1898, and was sentenced to three months' imprisonment in the county jail and to pay a fine of $50, and costs. The complaint set out three causes of action and charged the plaintiff in error in each with selling intoxicating liquor at various times between the 20th day of July and the 25th day of August, 1903, without having first obtained a license. The complaint makes no reference to any former conviction. A stay of execution of sentence was granted, and the record removed to this court by writ of error.John A. Aylward, for plaintiff in error.

L. M. Sturdevant, Atty. Gen. (A. C. Titus, Asst. Atty. Gen., and F. L. Gilbert, Dist. Atty., of counsel), for the State.

KERWIN, J. (after stating the facts).

Error is assigned because the court admitted evidence of a former conviction, the same not having been pleaded. The question arising under this assignment of error is whether upon a complaint charging sale of intoxicating liquor without having first obtained a license, in the absence of an allegation in the complaint of a former conviction, evidence on the part of the state was admissible to prove such former conviction for the purpose of subjecting the accused to the higher grade of punishment imposed by the statute. The statute under which plaintiff in error was convicted (section 1550, Rev. St. 1898) provides for a fine of not less than $50, nor more than $100, and costs, or in lieu of such fine by imprisonment in the county jail not to exceed six months, nor less than three months; and further provides: “In case of a second or subsequent conviction of the same person during any year the punishment shall be by both such fine and imprisonment.” The case was tried upon the theory that the complaint was sufficient to warrant conviction and sentence for a second offense under which evidence was admitted over objection of a former conviction.

The plaintiff in error was found guilty and sentenced to punishment as for a second offense. The complaint was clearly insufficient to warrant proof or conviction of a second offense. As has been seen a conviction for a second offense subjected the plaintiff in error to a more severe punishment than conviction for a first offense. It is contended on the part of the state that the proof of former conviction did not go to the question of guilt or innocence of the plaintiff in error, but only to the severity of the punishment, hence that there was no necessity for any allegation of former conviction in the complaint. But the accused was entitled to be informed of the nature of the charge against him, and since a greater punishment is imposed upon a second conviction, prior conviction was an essential element of the offense in a prosecution for a second offense. The complaint, therefore, was insufficient to admit proof of former conviction. This doctrine appears to be so well established that we deem discussion of it wholly unnecessary. The following are some of the many authorities in support of the doctrine that where the statute provides a heavier penalty for the second offense, the first must be alleged in the indictment and proved upon the trial in order to warrant conviction and punishment for a second offense: Wharton's Cr. Pl. & Pr. (9th Ed.) § 934; Bishop's New Crim. Procedure, vol. 1, §§ 77, 101; Bishop, on Statutory Crimes (3d Ed.) § 981; Clark's Crim. Procedure §84; 12 Cyclopedia of Law & Procedure, p. 950; Hochheimer's Crim. Law (2d Ed.) § 104; Johnson v. People, 55 N. Y. 512;People v. Sickles, 156 N. Y. 541, 51 N. E. 288;Hines v. State, 26 Ga. 614;Evans v. State, 150 Ind. 651, 50 N. E. 820;Commonwealth v. Harrington...