People v. McDonald

• Decision Date: 22 December 1925
• Docket Number: No. 137.,137.
• Parties: PEOPLE v. McDONALD.
• Court: Michigan Supreme Court

233 Mich. 98

206 N.W. 516

PEOPLE

v.McDONALD.

No. 137.

Supreme Court of Michigan.

Dec. 22, 1925.

Error to Superior Court of Grand Rapids; Leonard D. Verdier, Judge.

Elmer A. McDonald was convicted on a charge of having intoxicating liquor in his possession, and he brings error. Conviction set aside, and new trial ordered.

Argued before McDONALD, C. J., and CLARK, BIRD, SHARPE, MOORE, STEERE, FELLOWS, and WIEST, JJ.Dunham, Cholette & Quail, of Grand Rapids, for appellant.

Andrew B. Dougherty, Atty. Gen., and Earl W. Munshaw, Pros. Atty., of Grand Rapids, for the People.

SHARPE, J.

Defendant reviews his conviction and sentence on a charge of having intoxicating liquor in his possession by writ of error. The charge was laid in the complaint, warrant and information as a second offense, and the sentence was imposed therefor. Comp. Laws Supp. 1922, § 7079 (51). No proof was offered on the examination had that defendant had been theretofore convicted of a similar offense.

1. The question first presented is whether, without such proof, an averment thereof may be made in the information and a conviction and sentence therefore sustained.

The validity of the provision for additional punishment for second offenders was passed upon and sustained in People v. Roth, 228 Mich. 447, 200 N. W. 136. The information must contain an averment of former conviction, and there must be proof on the trial to maintain it, to justify a conviction and sentence therefor. People v. Buck, 109 Mich, 687, 67 N. W. 982;People v. Butler, 122 Mich. 35, 80 N. W. 883;People v. Campbell, 173 Mich. 381, 139 N. W. 24;State v. Findling, 123 Minn. 413, 144 N. W. 142,49 L. R. A. (N. S.) 449.

Our statute (3 Comp. Laws 1915, § 15767), provides that:

‘No information shall be filed against any person for any offense, until such person shall have had a preliminary examination therefor, as provided by law, * * * unless such person shall waive his right to such examination,’

-with certain exceptions thereafter noted and not here applicable. If such examination be waived, the prosecuting attorney ‘may file an information charging any offense contained in the warrant.’ Stuart v. People, 42 Mich. 255, 258, 3 N. W. 863, 864. If not waived, the charge as laid in the information must be based on the proof submitted to the justice. In Turner v. People, 33 Mich. 363, 371, 372, it was said:

‘If it appears, however, that as to the offense charged in the information there been no preliminary examination, then it was not competent to inform for it, and the prosecuting attorney and the court were equally at fault. But in order to ascertain how this is, we can only have recourse to the ‘examinations,’ or in the equivalent terms of the proviso, to the ‘evidence filed in the case.’ Because no other matter of evidence is required to be returned and filed (section 7867, C. L.), and it is to such evidence the prosecuting attorney is plainly referred in order to shape his information, and the same evidence which is to govern the court when directing a ‘proper’ information to be filed. All the regulations point to it as the evidence to discriminate the criminal act to be laid, and to disclose its class and character. Indeed, on this subject the law appears clear when the various provisions are examined and compared.'

Under these holdings and the familiar rule relating to pleadings, that ‘whatever it is necessary to allege it is necessary to prove,’ it seems clear that if there must be an averment of former conviction in the warrant to justify its insertion in the information, then proof to sustain it must have been submitted to the police judge. The prosecution urges:

‘The extra punishment provided for the second offense does not alter the nature or grade of the offense. The offense remains the same. The punishment is the only thing that changes.’

The purpose of a criminal prosecution is to punish one who violates the law. The nature of the punishment which the statute provides may be inflicted is presumed to depend upon the enormity of the offense of which the accused has been convicted. One who assaults another with intent to rob and steal may be imprisoned for not more than 10 years, while, if such a person be at the time armed with a dangerous weapon, he may be imprisoned for not more than 15 years. The assault and intent constitute the crime. The fact that he was armed subjects him to the greater punishment. Larceny, and larceny from the person, and other offense may be distinguished in a similar manner. The grade of the offense is determined by some fact incident thereto, of an aggravating nature, justifying the punishment which may be imposed.

‘It is not the mere name of a crime, but the punishment therefor that characterizes it.’ People v. Craig, 195, N. Y. 190, 197, 88 N. E. 38, 40.

The charge here preferred against the defendant is not merely that he violated the law by having liquor in his possession, but that he had theretofore committed a similar violation, for which he had been convicted, and thereby rendered himself liable to a greater punishment. As was said in Ingalls v. State, 48 Wis. 647, 4 N. W. 785:

‘The commission of the second offense is evidence of the incorrigible and dangerous character of the accused, which calls for and demands a severer punishment than should be inflicted upon the person guilty of a first oppense.’

The violation complained of is aggravated by the fact of his former conviction. He is thereby subjected to an enhanced penalty. The purpose of averring and proving it is to give the court jurisdiction to impose it. In People v. Sickles, 156 N. Y. 541, 51 N. E. 288, the defendant was convicted of robbery, charged as a second offense. Before the jury was impaneled, he admitted his former conviction, and thereafter sought, without avail, to have the evidence thereof excluded from the jury. His counsel urged:

‘The first offense and the first conviction constitute no part of, nor are they included in the second or subsequent offense. They are facts in the previous history of the accused, which are to be used by the court in fixing the penalty for the crime last charged, and the defendant has the right to admit these facts and be freed from the bias and prejudice they would create in the minds of the jury.’

In affirming the action of the trial court, the Court of Appeals said:

‘The statute, in question, is not dealing with, nor regulating, criminal procedure, but is declaring the enhanced penalty which a subsequent offender against the laws of the state will incur upon conviction. * * * The indictment of the person accused of being a second offender must bring the case within the statute, by setting forth the facts depended upon for the imposition of the severer punishment prescribed by the Penal Code. * * * In such a case as this, the charge is not merely that the prisoner has committed the offense specifically described, but that, as a former convict, his second offense has subjected him to an enhanced penalty. * * * It is not easy to see how, in the absence of some statutory provision permitting it, the defendant can plead in part and thus restrict the issue and the proof to be offered under the indictment. * * * I regard it as a necessary and logical conclusion, where an increased punishment is prescribed by the statute upon conviction for a second offense, that the prior conviction enters as an ingredient into the criminality of the prisoner. Not that the fact of the prior conviction tends, in any wise, to prove the commission of the second offense; but that it aggravates the guilt of the prisoner and, as a hardened, or unreformed, criminal, subjects him to an increased punishment for the repeated crime.’

In McWhorter v. State, 118 Ga. 55, 44 S. E. 873, it is said:

‘Where the second conviction changes the grade of the offense, or authorizes a higher penalty than could otherwise have been imposed, the former conviction enters as an element into the new offense, and must be alleged as a necessary part of the description and character of the crime intended to be punished.’

In Commonwealth v. Harrington, 130 Mass. 35, a statute of Massachusetts (St. 1880, c. 221, § 2), was...