Schooley v. United States

• Decision Date: 03 April 1925
• Docket Number: No. 6701.,6701.
• Citation: 4 F.2d 767
• Parties: SCHOOLEY v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

4 F.2d 767 (1925)

SCHOOLEY v. UNITED STATES.

No. 6701.

Circuit Court of Appeals, Eighth Circuit.

April 3, 1925.

Ben Cravens and Fadjo Cravens, both of Ft. Smith, Ark., for plaintiff in error.

S. S. Langley, U. S. Atty., and W. H. Dunblazier, Asst. U. S. Atty., both of Ft. Smith, Ark.

Before STONE and LEWIS, Circuit Judges, and SCOTT, District Judge.

LEWIS, Circuit Judge.

By indictment it appears that the pleader had in mind to charge plaintiff in error with the commission of felonies (Criminal Code, § 335 Comp. St. 10509), in that he had unlawful possession of intoxicating liquor, having been convicted twice theretofore of like offenses. Title 2, sections 3 and 29, National Prohibition Act (41 Stat. 308, 316 Comp. St. Ann. Supp.1923, §§ 10138½aa, 10138½p). There were two counts. The charge in the first reads this way:

"* * * That Walter (Red) Schooley on the first day of May in the year 1923 in the said division of said district and within the jurisdiction of said court as a third offense of that kind on his part, the said Walter (Red) Schooley having heretofore, to wit, on June 15, 1921, entered his plea of guilty to a similar charge, that is, the unlawful possession of intoxicating liquor, also having been tried and convicted in this court on June 15, 1922, of the unlawful possession of intoxicating liquor, unlawfully did possess a large quantity to-wit, one gallon, more or less of intoxicating liquor, to-wit, whiskey, otherwise than is authorized by the National Prohibition Act, that is to say, for intoxicating beverage purposes, contrary," etc.

The second count is in the same language, except a different date of possession is given. On general verdicts of guilty he was sentenced on each count to confinement in the penitentiary as for a third offense of the same kind. He filed his assignments of error, among them:

"Because the court erred by imposing a penitentiary sentence on the defendant and a fine for a third offense of unlawful possession of intoxicating liquor on each of the first and second counts of the indictment, for the reason that the first and second counts of the indictment did not sufficiently charge a third offense of the unlawful possession of intoxicating liquor."

He then sued out his writ of error, but has failed to lodge the record with us. For this failure a motion to dismiss the writ would be proper, under the rules, but defendant in error did not care to move. It filed the record with the clerk, filed a brief (plaintiff in error did not), and asks us to dispose of the case on its merits under our Rule 16, § 2. As reason therefor, the district attorney says there are other convictions on like charges in the same district, and it is a matter of public interest to have the sufficiency of the indictment to sustain the sentence settled. This might not, need not under the rules, induce us to make the inquiry, were it not for the fact that the court exceeded its powers in the sentence imposed, if the indictment does not state a good charge of a third offense.

We have held, in Massey v. United States, 281 F. 293, that a prior conviction is regarded as a part of the description and character of the offense intended to be punished, and as an essential ingredient of such aggravated offense, and that if the prosecutor desires to invoke the severer punishment provided as to second or subsequent offenders the indictment or information must allege the fact of the prior conviction, and the allegation of such conviction must be proved in the trial to the jury. The principles there announced are amply supported by the authorities cited. See also 31 C. J. 734, and cases.

"With rare exceptions, offenses consist of more than one ingredient, and in some cases of many, and the rule is universal that every ingredient of which the offense is composed must be accurately and clearly alleged in the indictment, or the indictment will be bad, and may be quashed on motion, or the judgment may be arrested, or be reversed on error." U. S. v. Cook, 17 Wall. 168, 174 (21 L. Ed. 538); Evans v. United States, 153 U. S. 584, 587, 14 S. Ct. 934, 38 L. Ed. 830.

In Wilde v. Com., 2 Metc. (Mass.) 408, Chief Justice Shaw said:

"It is therefore not necessary to set forth the full and entire record of such previous conviction in extenso; it is sufficient to set it forth with such particularity as to identify it, and indicate the nature and character of the offense charged, and to set forth the sentence or judgment, with so much exactness, as to show that it was such a conviction as brings the convict within the law providing for the additional punishment sought for by the information."

In State v. Savage, 86 W. Va. 655, 104 S. E. 153, cited in the Massey Case, the defendant was convicted of a second violation of the state prohibition law. The state statute, as the National Prohibition Act, made it the duty of the prosecuting attorney to ascertain whether or not the charge made by the grand jury was the first or second offense, and if the second offense it should be so stated in the indictment. A prior offense of like character was charged in these words:

"He, the said Joe Savage, having been prior to the date of committing said offense and previously 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 period of six months, and to pay a fine of $100 and costs."

It was held that the prior offense thus stated was not sufficiently charged because the averments were not direct but by way of recital. In Cooper v. Com., 134 Va. 545, 113 S. E. 863, the conviction was of a second offense of transporting and selling ardent spirits, and defendant was sentenced to a term of three years...