State v. Holder

• Decision Date: 02 July 1930
• Docket Number: 5582
• Parties: STATE, Respondent, v. WALKER HOLDER, Appellant
• Court: Idaho Supreme Court

290 P. 387

49 Idaho 514

STATE, Respondent, v. WALKER HOLDER, Appellant

No. 5582

Supreme Court of Idaho

July 2, 1930

CRIMINAL LAW-PUNISHMENT - SUBSEQUENT OFFENSES - PRIOR CONVICTION-PROOF-STATUTE OF LIMITATIONS, EFFECT OF - INDICTMENT AND INFORMATION, SUFFICIENCY OF-STATUTES-CONSTRUCTION.

1. Giving erroneous appellation to offense charged is immaterial where facts constituting offense were sufficiently alleged (C. S., sec. 2625, as amended by Laws 1925, chap. 61).

2. To sustain conviction for violation of prohibition law as second offender, both former conviction and present offense should be pleaded and proven (C. S., sec. 2625, as amended by Laws 1925, chap. 61).

3. Defendant may be convicted of liquor law violation under information charging violation as second offender, though proof is insufficient to establish former conviction (C. S sec. 2625, as amended by Laws 1925, chap. 61).

4. There can be no conviction as second offender unless defendant is guilty of subsequent offense, second offense being punished and not first (C. S., sec. 2625, as amended by Laws 1925, chap. 61).

5. That limitation had run against first offense held immaterial in prosecution for subsequent offense as second offender embodying element of first offense (C. S., sec. 2625, as amended by Laws 1925, chap. 61).

6. Increasing severity of punishment when same or similar offense is committed second time held not second punishment for same offense, but increase of punishment for subsequent offense (C. S., sec. 2625, as amended by Laws 1925, chap 61).

7. Conviction for violation of prohibition law as second offender, held not to constitute "double jeopardy."

8. Statute authorizing increased punishment for second violation of prohibition law held not in conflict with statute authorizing punishment for first offense (C. S., secs. 2625 2628, as amended by Laws 1925, chap. 61).

9. Legislative intent must control interpretation of statute as determined from title and language of act itself.

10. In construing words of statute, court must construe plural to mean singular (C. S., sec. 9456).

11. Court in construing statute is not concerned with policy of law or motives of legislature in enacting it.

12. Statute authorizing increased punishment on second conviction for violation of prohibition law held not void for uncertainty (C. S., sec. 2625, as amended by Laws 1925, chap. 61).

APPEAL from the District Court of the Second Judicial District, for Latah County. Hon. Gillies D. Hodge, Judge.

Defendant was convicted of violating the prohibition laws as a second offender, and appeals. Affirmed.

Affirmed.

A. L. Morgan, for Appellant, cites no authorities on points decided.

W. D. Gillis, Attorney General, and Fred J. Babcock, Assistant Attorney General, for Respondent.

It is the second or subsequent offense which is punished and not the first. (People v. Camperlingo, 69 Cal.App. 466, 231 P. 601; Moore v. State, 159 U.S. 673, 16 S.Ct. 179, 40 L.Ed. 301; Tucker v. State, 14 Okla. Crim. 54, 167 P. 637.)

Where conviction for a second offense calls for an increased penalty, it is immaterial that the statute of limitations has run against the first offense. (State v. Buttignoni, 118 Wash. 110, 203 P. 76; Hyser v. Commonwealth, 116 Ky. 410, 76 S.W. 174; State v. Le Pitre, 54 Wash. 166, 18 Ann. Cas. 922, 103 P. 27; State v. Magnusson, 128 Wash. 541, 223 P. 325; Graham v. West Virginia, 224 U.S. 616, 32 S.Ct. 583, 56 L.Ed. 917.)

An information is good where the charging part correctly defines the offense although the name of the offense is not correctly charged. (State v. Altwatter, 29 Idaho 107, 157 P. 256, and cases cited.)

VARIAN, J. Givens, C. J., and Budge, Lee and McNaughton, JJ., concur.

OPINION

VARIAN, J.

Defendant was convicted of violating the prohibition laws as a second offender, and appeals from the judgment. The evidence taken at the trial is not before us, the attack centering upon a construction of the statute authorizing a penitentiary sentence in the case of second offenders.

The charging part of the information reads as follows:

"Wherefore, I, Abe Goff, Prosecuting Attorney of Latah County, State of Idaho, by this Information, do accuse the defendant, Walker Holder, of a crime against the State of Idaho, to wit: Being a Persistent Violator of the State Prohibition Act, a felony, committed as follows, to wit: That in Latah County, State of Idaho, and on or about the 17th day of December, 1929, the defendant, Walker Holder, then and there being, did then and there willfully, knowingly, unlawfully, and feloniously have in his possession intoxicating liquor, to wit: Whiskey; and that prior to said date and on the 13th day of November, 1928, the said Walker Holder was convicted in the District Court of the Second Judicial District of the State of Idaho, in and for the County of Latah, of an offense against the State Prohibition Act, other than Section 2622, to wit: Sale of Intoxicating Liquor; all of which is contrary to the form, force, and effect of the statute," etc.

C. S., sec. 2625, as amended, Sess. Laws 1925, chap. 61, p. 89, reads:

"A person having once been convicted of a violation of any of the provisions of this article, except Section 2622, who thereafter violates the provisions hereof, shall be deemed guilty of a felony and upon conviction thereof shall be imprisoned in the state penitentiary at hard labor for not less than two years nor more than five."

C. S., sec. 2625, as originally enacted (Sess. Laws 1915, chap. 11, sec. 19, p. 46), contained the expression, "shall be considered a persistent violator of this article and shall be," before the words, "deemed guilty of a felony," etc. The amendment of 1925 struck out all reference to "persistent violator," simply naming the offense as a felony punishable in the penitentiary.

It will be noted that the information describes the offense in the language of the statute before its amendment, charging defendant with the crime of "being a persistent violator of the State Prohibition Act, a felony." The facts constituting the offense being sufficiently stated in the information, the mere giving of an erroneous appellation to the offense is immaterial. (State v. Altwatter, 29 Idaho 107, 157 P. 256; State v. Curtis, 29 Idaho 724, 161 P. 578.)

Defendant pleaded not guilty, and that he had already been convicted of the offense charged in the information.

The first point urged is that the information fails to state an offense, in that one of the principal elements of the offense charged is shown to be barred by the statutes of limitations. Appellant's theory is that C. S., sec. 2625, as amended, states a different offense from that of possession of intoxicating liquor, which is declared a misdemeanor; that it purports to state a felony, one of the elements of which is a prior conviction, which in the present case occurred more than a year before the present offense was committed or information filed, and therefore the statute has run as against the said element. We cannot agree with this view. The statute purports to punish the second offense as a felony. When the evidence shows a present violation, say for unlawful possession of intoxicating liquor, and also a previous conviction for a violation of the prohibitory law, the penalty is increased as for a felony to imprisonment in the state penitentiary; that is, the penalty for possession is assessed as for a felony. It is necessary that both elements, the former conviction and the present offense, should be pleaded and proven to sustain a judgment under C. S., sec. 2625. (State v. Dunn, 44 Idaho 636, 258 P. 553.) If the proof is not sufficient to establish a former conviction, but ample to sustain the subsequent offense, a defendant may be convicted, under the same information, of that offense, and punished as for a misdemeanor, since it is embraced within the charge. ( State v. Bruno, 69 Utah 444, 256 P. 109.) There can be no conviction unless defendant is found guilty of the subsequent offense. As has been said in construing similar acts, it is the second offense that is punished, not the first. (Moore v. State, 159 U.S. 673, 16 S.Ct. 179, 40 L.Ed. 301; McDonald v. Commonwealth, 180 U.S. 311, 21 S.Ct. 389, 45 L.Ed. 542 (546); Graham v. State, 224 U.S. 616, 32 S.Ct. 583, 56 L.Ed. 917 (921); Tucker v. State, 14 Okla. Crim. 54, 167 P. 637; 16 C. J., p. 1339.) The statute of limitations not having run against the subsequent offense, it is immaterial that it may have run against the first offense of which he was convicted.(State v. Buttignoni, 118 Wash. 110, 203 P. 76; State v. Colopy, 120 Kan. 220, 242 P. 1016; note, 58 A. L. R. 58.)

As to the plea of former conviction: The statute, in effect, increases the severity of the punishment when the same or a similar offense is committed the second time. It is not a second punishment for the same offense, but an increase of punishment for the subsequent offense. (8 R. C. L., p. 272, sec. 286; 1 Bishop on Criminal Law, 9th ed., pp. 713, 714.) Having formerly been convicted of the offense of unlawfully selling intoxicating liquor, defendant, on being prosecuted for the subsequent offense of unlawful possession of intoxicating liquor, was not put twice in jeopardy for the same offense (State v. Adams, 89 Kan. 674, 132 P. 171; State v. Moore, 121 Mo. 514, 42 Am. St. 542, 26 S.W. 345, affirmed, supra, 159 U.S. 673, 16 S.Ct. 179, 40 L.Ed. 301; Ingalls v. State, 48 Wis. 647, 4 N.W. 785; note, 58 A. L. R. 23), and the former conviction is not a bar to the present prosecution in the instant case.

Appellant argues that, having been convicted in the instant action of the crime of unlawful possession of intoxicating liquor, as defined in C. S., sec. 2628, as amended, ...