State v. Brantley
| Citation | 1 Ohio St.2d 139,205 N.E.2d 391 |
| Decision Date | 10 March 1965 |
| Docket Number | No. 38725,38725 |
| Parties | , 30 O.O.2d 489 The STATE of Ohio, Appellant, v. BRANTLEY, Appellee. |
| Court | Ohio Supreme Court |
Syllabus by the Court
Where a statute provides that one who violates it shall be punished as for a misdemeanor 'for a first offense' and punished as for a felony 'for each subsequent offense,' a second violation of that statute may be punished as a 'subsequent offense' thereunder if the offender has been convicted of a previous violation of that statute before his indictment for the second violation thereof although the second violation occurred prior to his conviction of the previous violation. (Paragraph two of the syllabus of Carey v. State, 70 Ohio St. 121, 70 N.E. 955, distinguished.)
On May 11, 1962, the Grand Jury of Summit County filed an indictment stating that they '* * * do find and present that * * * [defendant] * * * on the 12th day of February * * * [1962] unlawfully did own, possess, have on or about his person, in his custody or have under his control a ticket, order or an interest in a scheme of chance known as policy, numbers game or clearing house, * * * contrary to * * * the statute * * * and further to find and present that * * * [defendant] * * * on the 3rd * * * of October * * * 1961, was * * * charged by affidavit for the crime of possession of numbers game ticket, in the violation of Section 2915.111 of the Ohio Revised Code * * * and on the 20th day of March * * * 1962, a jury * * * found said * * * [defendant] guilty of Section 2915.111 * * * and thereafter on March 26, 1962, the court fined said defendant * * * ($300) and costs and sentenced said defendant to * * * (30) days in said case.'
Section 2915.111 reads:
'No person shall own, possess, have on or about his person, have in his custody, or have under his control a ticket, order, or device for or representing a number of shares or an interest in a scheme of chance known as 'policy,' 'numbers game,' 'clearing house,' or by words or terms of similar import, located in or to be drawn, paid, or carried on which or without this state.
'Whoever violates this section shall be fined not more than [$500] and imprisoned not more than six months for a first offense; for each subsequent offense, such person shall be fined not less that [$500] nor more that [1,000] and imprisoned not less than one nor more than three years.'
After defendant's plea of 'not guilty' and after defendant waived his right to a jury trial, defendant was tried by the court, which found defendant 'guilty of the crime of possession of numbers game ticket as charged in the indictment * * *,' overruled defendant's motion for a new trial, and sentenced defendant to the penitentiary for an indeterminate sentence of one to three years.
On appeal to the Court of Appeals, that court held that there could be no conviction for a 'subsequent offense' since the claimed subsequent offense occurred prior to conviction for the first offense, and that court remanded the cause to the trial court with instructions to impose a penalty as for a first offense.
The cause is now before this court on appeal from the judgment of the Court of Appeals, pursuant to allowance of a motion by the state for leave to appeal.
John S. Ballard, Pros. Atty., and Alfred R. Smith, Cuyahoga Falls, for appellant.
J. Franklin Spruill and Thomas S. E. Brown, Akron, for appellee.
Section 2915.111 provides punishment as for a misdemeanor 'for a first offense' and punishment as for a felony 'for each subsequent offense.'
Defendant was convicted for a violation of that statute, which took place in October 1961. This conviction was in March 1962. Thereafter, defendant was indicted and convicted as a subsequent offender for a violation of that statute, which occurred in February 1962.
Defendant contends that he cannot be convicted as a subsequent offender because his second violation of the statute occurred before and not after his conviction for the first violation thereof. In other words, he contends and the Court of Appeals held that a violation of the statute could not be a 'subsequent offense,' within the meaning of this statute, unless such violation occurred after defendant's conviction for a previous violation of the statute.
The effect of this contention and of this holding is either (1) to read the words 'first offense' where they occur in the statute as though they read 'first conviction' or (2) to insert in the statute a requirement, not expressed therein, i. e., that, in order to be a 'subsequent offense,' an offense must occur 'after a conviction for a first offense.'
The ordinary meaning of the word 'offense' is 'the doing that which a penal law borbids to be done or omitting to do what it commands.' On the other hand, a 'conviction' is 'that legal proceeding which ascertains the guilt of the party upon which the sentence or judgment is founded.' Bouvier's Law Dictionary (Baldwin's Century Ed. 1940). In other words, a conviction is a legal ascertainment that an offense has been committed. A conviction is not an essential element of an offense although an offense is always a prerequisite to a conviction.
Thus, it would be necessary, in order to affirm the judgment of the Court of Appeals, either to give other than their ordinary meaning to the words 'first offense' in the statute or to add words to the statute which the statute does not contain.
As stated in State v. Dale (1900), 110 Iowa 215, 217, 81 N.W. 453,
As stated in State v. McCormick (1928), 104 N.J.L. 288, 140 A. 297:
'The 'offense' took place when the alleged criminal act was committed irrespective of the time of conviction or the plea...
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