State v. Savage

• Decision Date: 21 September 1920
• Docket Number: 3944.
• Citation: 104 S.E. 153,86 W.Va. 655
• Parties: STATE v. SAVAGE.
• Court: West Virginia Supreme Court

104 S.E. 153

86 W.Va. 655

STATE v. SAVAGE.

No. 3944.

Supreme Court of Appeals of West Virginia.

September 21, 1920

Submitted September 7, 1920.

Syllabus by the Court.

To subject a defendant, indicted for a second offense against the provisions of section 3, c. 32A, Code 1918 (Code 1913 sec. 1282), to the superimposed penalty therein provided, the indictment must aver such former conviction directly, not parenthetically or by way of participial clause, and describe it with sufficient particularity and precision to advise the accused of the charges he must prepare to meet, and enable the court to determine whether the statute applies.

Where a former conviction is made the ground of some disability or penalty to be imposed upon a defendant found guilty of a second offense, the word "conviction," as used in the statute, generally connotes finality of judicial ascertainment, so far as the trial court is concerned.

An indictment charging such former offense should aver not only the conviction, as represented by the jury's verdict, but also the sentence based thereon, in order to show that the proceeding for the first offense has attained a state of finality so far as the trial court has power to control it.

Defective averments respecting a former conviction for the same offense, incorporated in an indictment as a basis for the infliction of an additional penalty in case the accused is found guilty of the principal offense, do not vitiate the whole indictment, but only such part of it as charges the former conviction. If otherwise sufficient, the accused may be put to trial for the principal offense charged against him.

Ordinarily it is the duty of the state not only to plead, by proper averment, the fact of the former conviction, but also to prove it by the introduction of the record evidence pertaining thereto; but where the defendant, by voluntary and unretracted admission in open court, confesses a prior conviction, properly averred, there is no necessity for the introduction of formal proof thereof.

But where the averment respecting the prior offense is defective because uncertain and indefinite, an admission by accused of former conviction does not constitute a judicial confession thereof, subjecting him to the additional penalty provided by statute, though made during and for the purpose of the trial since that portion of the indictment is vitiated by the defect and no longer constitutes part of the offense charged against him.

Error to Circuit Court, Fayette County.

Joe Savage was convicted of the second violation of the Prohibition Law, and he brings error. Reversed, verdict set aside, and defendant awarded a new trial.

Ritz J., dissenting in part.

T. A. Myles and Osenton & Lee, all of Fayetteville, for plaintiff in error.

E. T. England, Atty. Gen., and Chas. Ritchie, Asst. Atty. Gen., for the State.

LYNCH J.

The sufficiency of the indictment upon demurrer, the sufficiency and competency of the proof offered by the state upon the trial and admitted over defendant's objection, and the propriety and relevancy of instructions asked by the state and given and those asked by defendant and refused, are the chief grounds assigned by defendant to reverse the judgment of conviction and sentence to confinement in the penitentiary for the second violation of the provisions of section 3, c. 32A, Code 1918 (Code 1913, sec. 1282), the Prohibition Statute. Other assignments are merely collateral or incidental to these.

In charging the principal offense, the one for which defendant is now under conviction, the indictment follows the form prescribed by section 3 of the chapter cited; but the draftsman attempted to charge two former convictions against defendant for violations of the same section, the first by a participial phrase immediately following the description of the violation for which he was last indicted, the phrase being in these words:

"He, the said Joe Savage, having been prior to the date of committing said offense and previously thereto been convicted of a like offense in the criminal court of Fayette county, West Virginia, on the 28th day of April, 1917, and sentenced to confinement in the county jail of said county for and during a period of six months, and to pay a fine of $100 and costs."

The other former conviction is charged in this language:

"And the grand jurors aforesaid, upon their oaths aforesaid, do further present that the said Joe Savage was, prior to the date of the commission of the offense first hereinbefore mentioned, and also prior to the date of the conviction hereinbefore set out, convicted by C. L. Ballard, a justice of the peace of Fayette county, West Virginia, upon a charge of a like offense, to wit, for unlawfully manufacturing, selling, keeping, offering, storing, and exposing for sale and solicit and receiving orders for liquors and absinthe and drink compounded of absinthe, against the peace and dignity of the state."

According to all the decisions and text-writers dealing with the subject and examined by us, the rule is that to subject a person indicted for a second offense to a superimposed penalty because of a former conviction, when authorized by statute, the indictment must directly aver such a conviction with particularity and definiteness, at least to an extent sufficient to advise the accused of the charges he must be prepared to meet, and to enable the court to determine whether or not the statute applies. State v. Welch, 69 W.Va. 547, 72 S.E. 649; Paetz v. State, 129 Wis. 174, 107 N.W. 1090, 9 Ann. Cas. 767, and cases cited in note; 3 Wharton, Crim. Proc. (10th Ed.) § 1877; 1 Bishop. New Crim. Proc. §§ 77, 101; Rand v. Com., 9 Grat. (Va.) 738; 16 C.J. p. 1342; 14 R. C. L. p. 190. The description need not technically be perfect. Substantial disclosure is all that is required. State v. Hoilman 82 W.Va. 98, 95 S.E. 591; State v. Goldstrohm, 99 S.E. 248; State v. Wentworth, 65 Me. 234, 20 Am. Rep. 688; State v. Small, 64 N.H. 491, 14 A. 727.

The requirement for directness and particularity in describing the former conviction and sentence as a result of the proceedings had before the criminal court of Fayette county. April 28, 1917, the indictment ignores. The averment as to that conviction is inserted merely as a parenthetical observation, or as a recital, not as a positive and direct charge, though the recital does disclose the imposition of a sentence of fine and imprisonment in the county jail. But the prior conviction of the accused, as ascertained by Ballard, is stated in the indictment with all the directness, particularity, and precision required by law, except as to the sentence imposed, if such an averment is requisite, as it fully and completely advises the accused of the facts necessary to warrant the trial court to add the increased penalty, should he again be convicted of the main charge preferred against him, and should the state prove and the jury ascertain the facts to be as therein averred, both as to the main charge and the conviction by Ballard. State v. Hoilman, supra; State v. Goldstrohm, supra.

The averment of the indictment charging the conviction of defendant last mentioned is silent as to the sentence imposed upon him as punishment for the offense. Ordinarily the sentence is no part of the conviction, but is based on it.

However where a former conviction for the same offense is made the ground of some disability or special penalty, it is held generally that the word "conviction" includes within its meaning the finality attributed to a judgment, and for that reason necessitates the pronouncement of sentence upon the verdict in order to obtain a judgment that is final, so far as the trial court is concerned. Com. v. McDermott, 224 Pa. 363, 73 A. 427, 24 L. R. A. (N. S.) 431; Smith v. Com., 14 Serg. & R. (Pa.) 69; Faunce v. People, 51 Ill. 311; 16 C.J. pp. 1266, 1267, 1341, §§ 3002, 3155. A defendant cannot be guilty of a second offense until it has been judicially determined that he has sinned once before. Between a jury's verdict of guilty and the pronouncement of sentence thereon there may, and frequently do, intervene numerous motions of counsel and rulings by the trial court. The verdict may be set aside, upon proper motion, and a new trial awarded, followed by acquittal. There is no finality in the verdict alone. Only when the trial court's approval has been given thereto in the form of a sentence does it become a final conviction sufficient to support the imposition of an additional penalty for a second offense, and it retains its character of finality at least until an appeal is allowed by an appellate court. For these reasons the indictment should aver not only the conviction, but the sentence based thereon, to show that the proceeding for the first offense has attained a state of finality so far as the trial court has power to control it. With this rule requiring the imposition of a judgment upon the verdict of guilty the indictments for second offenses involved in State v. Hoilman, cited, and State v. Goldstrohm, cited, fully complied. An indictment must be as certain as the case will allow. 1 Chitty, Crim. Law, pp. 171, 172, 231. We have heretofore held in recent decisions that it is not necessary to aver also that the former judgment of conviction has not been reversed or set aside by an appellate court, such fact, if true, being defensive, and the burden being upon defendant to prove the same on the trial. State v. Goldstrohm, supra; State v. Vendetta, 103 S.E. 53. Nor is it necessary, in describing the prior offense to set out fully and at length the proceedings and record pertaining thereto. The purpose of the averment is to show that defendant, because of past conviction, should be subjected to additional...