State v. McClay

• Decision Date: 23 January 1951
• Citation: 78 A.2d 347,146 Me. 104
• Parties: STATE v. McCLAY.
• Court: Maine Supreme Court

Page 347

78 A.2d 347

146 Me. 104

STATE v. McCLAY.

Supreme Judicial Court of Maine.

Jan. 23, 1951

James L. Reid, County Atty., of Kennebec County, for State.

Dubord & Dubord, and James E. Glover, all of Waterville, for respondent.

Before MURCHIE, C. J., and THAXTER, FELLOWS, MERRILL, NULTY, WILLIAMSON, JJ.

MERRILL, Justice.

On report. The respondent in this case was arrested and, upon a plea of not guilty, convicted in the Municipal Court of Waterville, in the County of Kennebec, on a complaint and warrant which alleged that on the twenty-ninth day of April, A. D. 1950, at Vassalboro, in the County of Kennebec and State of Maine, he 'did operate and drive a certain motor vehicle, to wit, a automobile on a certain public highway, to wit, Route #201, while under the influence of intoxicating liquors, against the peace of the State and contrary to Statute in such case made and provided. And your Complainant, on his oath aforesaid, further complains that the said James McClay, Jr. was convicted for the crime of operating a motor vehicle while under the influence of intoxicating liquors in the Municipal Court of Augusta on the 10th day of September, 1946, against the peace of the State and contrary to the Statute in such case made and provided.'

The respondent was sentenced to 'pay a fine of three hundred dollars and costs of prosecution and in addition thereto that he be imprisoned 3 months in the County Jail. Jail sentence suspended on payment of fine and costs.' From this sentence the respondent appealed to the Superior Court at the term thereof to be held at Augusta, in said County, on the first Tuesday of June next. In the Superior Court at the June Term, 1950, the respondent moved that said complaint be quashed for the following reasons:--'that said complaint is invalid in that the complaint contains an allegation that the Respondent had been previously convicted of the crime of operating a motor vehicle while under the influence of intoxicating liquor; said allegation being prejudicial to the Respondent, and in contravention of Section 128, Chapter 100, Revised Statutes of 1944, as amended by Section 1, Chapter 265, Public Laws of 1947.'

The case was reported to this Court by the Justice presiding to determine the question of the validity of the complaint with the stipulation:--'If the complaint be adjudged bad, a nolle prosequi shall be entered; otherwise, the case to stand for trial below on Respondent's plea of not guilty.'

The respondent was charged with the violation of that portion of R.S. Chap. 19, Sec. 121 which reads as follows:--'Whoever shall operate or attempt to operate a motor vehicle upon any way, or in any other place when intoxicated or at all under the influence of intoxicating liquor or drugs, upon conviction, shall be punished by a fine of not less than $100, nor more than $1,000, or by imprisonment for not less than 30 days, nor more than 11 months, or by both such fine and imprisonment. Any person convicted of a 2nd or subsequent offense shall be punished by imprisonment for not less than 3, nor more than 11 months, and in addition thereto, the court may impose a fine as above provided.'

This statute provides an enhanced punishment for conviction of a second or subsequent offense of the same character. This statute means that a person who has been convicted of violating this statute, if again convicted for a second or subsequent violation of the same statute, is subjected to the enhanced or increased punishment provided for in such case.

Counsel for the respondent urges that there is no enhancement of punishment because the court in imposing sentence for a first offense can impose any punishment that it could impose for the second or subsequent offense. While it is true that under this statute the court may impose as severe punishment for the first offense as it can for the second or subsequent offense, nevertheless, for a first offense the court may impose a lesser punishment than it must impose for a second or subsequent offense under the mandatory terms of the statute respecting punishment for the second or subsequent offense. Under this section of the statute for a first offense the court could impose a sentence of a fine only, or it could impose a sentence of not less than 30 days and less than 3 months. For a second offense the provision that a sentence of not less than 3 months be imposed is made mandatory. All discretion as to imposing a fine only or a sentence for less than 3 months is taken away. This constitutes an enhancement or increase in the punishment for a second offense.

It has been generally held that in order to subject an accused to the enhanced punishment for a second or subsequent offense it is necessary to allege in the indictment or complaint the fact of a prior conviction or convictions. A detailed review of the authorities would serve no useful purpose. They may be found collected in the very exhaustive notes in 58 A.L.R. 20 at 64 et seq. and 68 A.L.R. 345, 366 et seq.

The Constitution of this State, Article I, Sec. 6, provides that in all criminal prosecutions, the accused shall have a right 'To demand the nature and cause of the accusation, and have a copy thereof;'. The purpose of this constitutional guaranty in the bill of rights is to afford 'to the respondent in a criminal prosecution such a reasonably particular statement of all the essential elements which constitute the intended offense as shall apprise him of the criminal act charged;'. See State v. Lashus, 79 Me. 541, 11 A. 604, 605; Smith Pet'r, v. State, Me., 75 A.2d 538.

As said by Chief Justice Shaw in Tuttle v. Commonwealth, 2 Gray, Mass., 505, at page 506:--'When the statute imposes a higher penalty upon a second and a third conviction, respectively, it makes the prior conviction of a similar offense a part of the description and character of the offense intended to be punished; and therefore the fact of such prior conviction must be charged, as well as proved. It is essential to an indictment, that the facts constituting the offense intended to be punished should be averred. This is required by a rule of the common law, and by our own Declaration of Rights, art. 12.'

In a later case, Commonwealth v. Harrington, 130 Mass. 35, an enhanced sentence was provided by statute for a conviction for drunkenness in the case of those who had been convicted of a like offense twice during the last preceding twelve months. The statute further provided 'it shall not be necessary in complaints under the act to allege such previous convictions.' St.1880, c. 221, § 2. On a complaint for drunkenness which did not allege two previous convictions of a like offense within the last preceding twelve months, the respondent was sentenced to the enhanced penalty, the evidence of previous convictions being produced when the motion for sentence was made. The court held:--'It is provided by art. 12 of the Declaration of Rights that no subject shall be held to answer for any crimes or offence until the same is fully and plainly, substantially and formally, described to him. When a statute imposes a higher penalty on a third conviction, it makes the former convictions a part of the description and character of the offence intended to be punished. Tuttle v. Commonwealth, 2 Gray [Mass.] 505. Commonwealth v. Holley, 3 Gray [Mass.] 458. Garvey v. Commonwealth, 8 Gray [Mass.] 382. It follows that the offence which is punishable with the higher penalty is not fully and substantially described to the defendant, if the complaint fails to set forth the former convictions which are essential features of it. That clause of the statute, therefore, which provides that it shall not be necessary in complaints under it, to allege such previous convictions, is inoperative and void, as being contrary to the provisions of the Declaration of Rights.'

That portion of Sec. 6 of Article I of our Constitution above quoted, while couched in different language from that of Article 12 of the Declaration of Rights in the Massachusetts Constitution, guarantees and requires that an indictment or complaint for crime must fully and substantially describe to him any crime or offense with which he is charged. Such a description of an offense is included in the phrase 'the nature and cause of the accusation'.

Under the statutes providing enhanced punishment for second offenses for infraction of the so-called liquor laws, this Court held that if the prior conviction was defectively charged the respondent could only be convicted of the first offense. Not only must the prior conviction be sufficiently alleged, but before the respondent could be convicted of a second or subsequent offense, the prior conviction must be proved beyond a reasonable doubt. We said in State v. Beaudoin, 131 Me. 31, 33, 158 A. 863, 864, 85 A.L.R. 1101:

'Counsel for respondent argues that it was error to call the attention of the jury to the allegation of a prior conviction and to require a finding as to that fact. The brief states: 'It is of no concern to the jury how many times the respondent has previously been convicted of a like offense.'

'But the respondent had entered a plea of not guilty. It was incumbent on the state to prove every material allegation in the indictment in order to justify the jury in bringing in a verdict of guilty. Respondent was not only charged with illegal transportation of liquor, he was charged with having been previously convicted of a similar offense, and therefore liable to additional punishment. Two issues were raised; namely, the immediate infraction of law and the fact of a prior conviction. State v. Gordon, 35 Mont. 458, 90 P. 173; People v. Ross, 60 Cal.App. 163, 212 P. 627; State v. Zink, 102 W.Va. 619, 135 S.E. 905.

'Before he could be subjected to an enhanced punishment for a second violation of law, his guilt on the principal charge must be proved, and also the fact of former conviction. Singer v. United States,...