State v. McCormick
| Decision Date | 06 February 1928 |
| Docket Number | No. 4.,4. |
| Citation | 140 A. 297 |
| Parties | STATE v. McCORMICK. |
| Court | New Jersey Supreme Court |
Error to Court of Quarter Sessions, Morris County.
Arthur McCormick was convicted of selling intoxicating liquors for beverage purposes as a second offense and of possessing intoxicating liquors for beverage purposes as a second offense, and he appeals on strict writ of error and under Criminal Procedure Act, § 136. Affirmed.
Argued October term, 1927, before PARKER, MINTURN, and CAMPBELL, JJ.
Frank H. Pierce, of Boonton, for plaintiff in error.
Albert H. Holland, of Morristown, for the State.
CAMPBELL, J. Plaintiff in error was indicted for violations under the Hobart Act (P. L. 1922, p. 615).
The indictment contained two counts.
The first charged the selling of intoxicating liquors for beverage purposes on July 18, 1925, and that such was a second offense in that the plaintiff in error had been convicted "of a first offense on November 27, 1925."
The second count charged the possession of intoxicating liquors for beverage purposes on July 18, 1925, and that it was a second offense, the plaintiff in error having been "convicted of a first offense on November 27, 1925."
Upon the trial under such indictment a general verdict of guilty as charged was returned and plaintiff in error was sentenced to confinement in the county jail for six months.
Such judgment is before us upon a strict writ of error and also under section 136 of the Criminal Procedure Act (2 Comp. St. 1910, p. 1863).
The assignments of error and specifications of causes are presented and argued under five points.
1. (a) The conviction is against the weight of the evidence. This we do not find to be so.
(b) The corpus delicti was not proved. This means, we take it, that the beer sold and possessed, was not proved to have a higher alcoholic content than that permitted by law and was not therefore legally an intoxicating liquor. What we have said as to the weight of evidence also applies to this.
(c) The allegations of the indictment were not sustained by the proof. This is directed to the charge of second offense in the indictment. As has been stated, the indictment charged the offense of selling and also of possession on July 18, 1925, and in each instance charged such to be a second offense as plaintiff in error had been convicted on November 2T, 1925, of a first offense.
The proofs show that the plaintiff in error was indicted at the May term, 1925, for both selling and possessing on October 5, 1923; that on November 27, 1925, he pleaded guilty to the charges in such indictment and was fined $100.
The contention seems to be that a first offense is to be measured and determined as of the date of conviction thereof.
We think this cannot be so, and the language of the statute (P. L. 1922, p. 615) does not seem to us to warrant any such construction.
The "offense" took place when the alleged criminal act was committed irrespective of the time of conviction or the plea of guilty, so long, at least, as such conviction or plea of guilty took place before the return of the indictment charging a similar offense as a second offense. And that was the...
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State v. Henderson
...the offense charged. * * * What reason is there for adding something to the language of the statute?' "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 pl......
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State v. McCall
...was used to express a relationship to the prior convictions rather than to the prior offenses themselves. But cf. State v. McCormick, 104 N.J.L. 288, 140 A. 297 (Sup.Ct.1928). The majority opinion finds a different purpose in the 1940 statute because it omitted the requirement for sentence ......
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Gonzalez v. United States
...his current offense, the decisions of the courts have varied depending upon the particular statute involved. In State v. McCormick, 1928, 104 N.J.L. 288, 290, 140 A. 297, 298, where it was held that under the New Jersey statute there did not have to be a prior conviction in order to invoke ......
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...the offense charged. * * * What reason is there for adding something to the language of the statute?' 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 ......