State v. Owen

• Decision Date: 29 June 1922
• Docket Number: No. 1827.,1827.
• Citation: 117 A. 814
• Parties: STATE v. OWEN.
• Court: New Hampshire Supreme Court

117 A. 814

STATE

v. OWEN.

No. 1827.

Supreme Court of New Hampshire. Sullivan.

June 29, 1922.

Transferred from Superior Court, Sullivan county; Marble, Judge.

Lee W. Owen was convicted of unlawfully possessing intoxicating liquor. From an order issuing a mittimus, he excepted. Case transferred from superior court. Exceptions overruled.

Appeal from the municipal court of Claremont. The complaint charged the respondent with illegally possessing intoxicating liquor contrary to the provisions of Laws 1919, c. 99, § 20. Respondent was arraigned March 29, 1922. Plea, guilty. Sentence as follows:

"It is ordered that the respondent pay a fine of $100, pay costs taxed at $25, and be confined in the county jail for the term of 30 days. Fine and jnil sentence suspended on payment of costs. Mittimus to issue at call of solicitor."

The costs were paid.

At the time sentence was imposed the respondent had been twice convicted of violations of the provisions of c. 147, Laws 1917, and was then serving a sentence, previously suspended, under one of these convictions. These facts were known to the solicitor and respondent's counsel. When the facts came to the attention of the court on March 31, 1922, the following order was made:

"After sentence was imposed, the attention of the court was called to the fact that the respondent has been previously convicted of a violation of Laws 1917, c. 147. If the respondent so desires, the order will be vacated, and the respondent permitted to withdraw his plea of guilty. Otherwise a mittimus will issue at the expiration of the sentence which the respondent is now serving."

The respondent did not see fit to avail himself of the privilege granted, whereupon the solicitor, at the request of the court, called for the mittimus, to which the respondent excepted.

Henry N. Hurd, of Claremont, for the State.

F. H. Brown, of Claremont, for defendant.

SNOW, J. Chapter 99 of Laws 1919, under which the respondent was sentenced, was an act in amendment of chapter 147, Laws 1917, sections 25 and 26 of which provided:

"Sec. 25. It shall be the duty of the court before whom an offense against any provision of this act is returned, upon having its attention called to the fact, and proof made, that the respondent has been previously convicted of a violation of this act, or amendments thereto, to quash the complaint, information or indictment, and cause a complaint or information to be made by the county solicitor for a second offense, and have the same served and returned and brought before said court, or before some other court having jurisdiction.

"Sec. 26. Courts having jurisdiction over violations of this act may suspend any sentence imposed by them on complaint, information or indictment for a first offense, so long as the respondent refrains from violating any of the provisions of this act. Sentence imposed for second or any...