State v. Parsons
| Decision Date | 26 June 1928 |
| Docket Number | No. 38663.,38663. |
| Citation | 206 Iowa 390,220 N.W. 328 |
| Parties | STATE v. PARSONS. |
| Court | Iowa Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Marshall County; Clarence Nichols, Judge.
Conviction for the crime of bootlegging, resulting in the imposition of sentence and judgment that the defendant pay a fine of $750 and in addition thereto be committed to the county jail of Marshall county, Iowa, for a period of nine months. The defendant appeals. Reversed.F. E. Northup, of Marshalltown, for appellant.
John Fletcher, Atty. Gen., and Neill Garrett, Asst. Atty. Gen., for the State.
DE GRAFF, J.
The defendant, Harold Parsons, was indicted March 18, 1927, by the grand jury of Marshall county, Iowa, for the crime of bootlegging as defined by section 1927, Code 1924. With the manifest purpose of bringing the case within the operation of the provisions of section 1964, Code 1924, it was alleged in the indictment, in addition to charging the facts constituting the crime of bootlegging, as follows:
“The said defendant, Harold Parsons, has heretofore been convicted of the liquor law violation, to wit, in cause No. 2767, Marshall county, Iowa.”
The county attorney offered in evidence a certain record of a case in the district court of Iowa in and for Marshall county for the purpose of showing the prior conviction of the defendant on a liquor charge. To this offer the objection was made as incompetent, irrelevant, and immaterial to any issue in the case, and for the reason that it is a matter pertaining to the penalty, and, if such a record did exist, it was for the court to merely take judicial notice, and not a matter for the consideration of the jury. Further objection was made that no sufficient foundation was laid to make the record competent as against the defendant.
It is true that the statute in force at the time of the commission of the alleged crime charged in the instant indictment, provided for a second and subsequent conviction of a violation of the prohibitory liquor laws of the state:
It is further provided:
“In any prosecution for a second or subsequent offense, as provided in this title, it shall not be requisite to set forth in the indictment or information the record of a former conviction, but it shall be sufficient briefly to allege such conviction.” Section 1954, Code 1924.
See State v. Lambertti (Iowa) 215 N. W. 752.
Further:
“On the trial of any cause, wherein the accused is charged with a second or subsequent offense, a duly authenticated copy of the former judgment in any court in which such judgment was so had, shall be competent and prima facie evidence of such former judgment.” Section 1956, Code 1924.
Upon the trial of the instant cause the clerk of the district court of Marshall county identified the record of the proceedings of the court which contained a permanent record of convictions and proceedings in liquor cases, and specifically cause No. 2767, entitled “State of Iowa v. Harold Parsons,” with the signature of B. F. Cummings, a judge of the district court of Iowa in and for Marshall county. Thereupon the plaintiff offered in evidence the said record, which disclosed that on the 6th day of February, 1923, the jury returned a verdict of guilty against Harold Parsons and also offered in evidence the indictment in cause No. 2767, together with the judgment entered in said cause. To all of these offers the defendant made objections heretofore and herein recited.
[1] I. Did the trial court properly rule the objections? There is but one basic objection made by the instant defendant which must be recognized on this appeal. There was no evidence offered by the state tending to identify the defendant on trial as the person against whom the judgment of record was made and entered. No attempt was made by the state to identify the defendant on trial as the defendant in the former judgment referred to in the indictment and in the record introduced and received in evidence. By the uniform current of authority, the fact of the prior conviction is to be taken as part of the offense instantly charged, at least to the extent of aggravating it and authorizing an increased punishment. State v. Smith, 129 Iowa, 709, 106 N. W. 187, 4 L. R. A. (N. S.) 539, 6 Ann. Cas. 1023, with cases cited.
[2] Defendant's plea of not guilty puts in issue not only all matters of fact essential to the crime charged, but the fact of the alleged former conviction of the defendant. In a sense there were two issues: (1) Not guilty to the crime of bootlegging as set forth in the indictment; and (2) not guilty to the alleged prior conviction of the liquor law of this state. As said in State v. Smith, supra:
The trial court in the instant case in the instructions given the jury defined the material allegation of the indictment:
“First. That the defendant on the day and year charged in the indictment did unlawfully and willfully carry around on his person intoxicating liquor, to wit, alcohol.
Second. That such carrying around was with the intent to sell the same.
Third. That such acts occurred in the county of Marshall and state of Iowa within three years prior to the finding of the indictment in this case, to wit, March 18, 1927.
Fourth. That defendant has formerly been convicted of the violation of the laws relating to intoxicating liquors.
If you find from the evidence and beyond a reasonable doubt that the plaintiff, state of Iowa, has established each and every of the foregoing propositions, then it is your duty to find the defendant guilty in manner and form as charged in the indictment. On the other hand, if you fail to find that the plaintiff has established each and every of the aforesaid allegations beyond a reasonable doubt, then your verdict should be not guilty.”
[3] Unless it may be said, therefore, that there was competent evidence tending to prove the former conviction of the defendant which necessarily includes the matter of identification of the defendant as the person formerly convicted, the verdict was not supported by the evidence. The fact that the statute provides for the introduction of an authenticated copy of a former judgment as prima facie proof of the fact alleged does not grant the state the privilege to stop at that point in the matter of proof.
State v. Smith, 129 Iowa, 709, 106 N. W. 187, 4 L. R. A. (N. S.) 539, 6 Ann. Cas. 1023.
See, also, State v. Logli (Iowa) 214 N. W. 490.
[4] In the instant case there was no special finding or form of verdict submitted to the jury with respect to the issue of former conviction. It is the rule of better practice for a trial court to so submit specially the issue of former conviction to the jury under such circumstances, as it is quite apparent that a defendant could be convicted by the jury on the primary charge in the indictment on evidence independent of and not referable to the issue of former conviction. In a strict legal sense, within the purview of the statute (section 1964), the former conviction is not...
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