State v. Adams

• Decision Date: 16 March 1888
• Citation: 13 A. 785,64 N.H. 440
• Parties: STATE v. ADAMS.
• Court: New Hampshire Supreme Court

13 A. 785

64 N.H. 440

STATE

v. ADAMS.

Supreme Court of New Hampshire. Merrimack.

March 16, 1888.

Exceptions from Merrimack county.

Indictment for the illegal keeping for sale of lager beer on the 27th day of April, 1887, with a second count alleging a former conviction of a like offense on the 5th day of July, 1882, in the police court of Concord, upon a complaint to which the defendant there pleaded guilty. The defendant moved to quash the second count on the ground that the record of the former conviction is too remote in time from the present offense, as alleged, and from the finding of the indictment, to constitute a second offense. The court denied the motion, and the defendant excepted.

N. E. Martin, for the State. Henry Robinson, for defendant.

SMITH, J. The keeping of lager beer for sale by a person not an agent for the purpose of selling spirituous liquors, is punishable by a fine of $10, and for any subsequent offense, by a fine of $50. Gen. Laws, c. 109, § 15. No indictment for the violation of this statute can be found unless the offense was committed within one year before the first day of the court at which it is prosecuted. Id. § 36. The indictment in this case, found at the October trial term, 1887, charges the respondent with the illegal keeping for sale of lager beer, April 27, 1887, and alleges a former conviction of a like offense, July 5, 1882, in the police court of the city of Concord, upon a complaint to which he pleaded guilty. The motion to quash is put upon the ground that neither the first offense, nor his conviction thereof, was within one year before the first day of the term when this indictment was found. If this is a good reason for quashing the indictment it must be because the first offense is a part of that charged. But no part of the offense charged in this indictment was committed in 1882. The keeping for sale in that year, and the alleged keeping for sale in 1887, are separate and complete acts and separate offenses. If the allegation of a former conviction should be stricken out, the change would not render the offense charged less complete. It is true, the heavier sentence for a subsequent offense cannot be imposed in the absence of an allegation and proof of a prior conviction. In some sense, therefore, the additional punishment may be said to be a consequence of the first conviction; but it is not a necessary consequence. It can only arise on a second conviction; and the offender, being apprised of it in advance, is left free to brave or avoid it. Rand v. Com., 9 Grat. 743. Lord CAMPBELL in Reg. v. Clark, Dears. Cr. Cas. 198, observed: "A statement of a previous conviction does not charge an offense. It is only the averment of a fact which may affect the punishment. The jury do not find the person guilty of the previous offense; they only find that he was previously convicted of it, as an historical fact." The statute merely makes a distinction in the punishment inflicted for a first and a subsequent conviction. The offense is the same in either case. The offender is not subjected to increased punishment for the first violation, nor is he a second time put in jeopardy for it. The heavier punishment is for persisting in wrong by repeating the offense. People v. Stanley, 47 Cal. 113; Rand v. Com., 9 Grat. 743; Ross's Case, 2 Pick. 165; Plumbly v. Com., 2 Metc. 413; 1 Bish. Crim. Law, (6th Ed.) 965. The punishment is more severe because of the character of the offender; because the discipline of his former punishment has failed to enforce his...