State v. Scheminisky
| Decision Date | 02 July 1918 |
| Parties | STATE, Respondent, v. WALTER SCHEMINISKY, Appellant |
| Court | Idaho Supreme Court |
CRIMINAL LAW-INTOXICATING LIQUORS-UNLAWFUL SALE-PERSISTENT VIOLATOR-PREVIOUS CONVICTION-PLEADING AND PROOF.
1. An indictment or information must allege all the facts constituting the offense sought to be charged.
2. When the statute imposes a higher penalty upon a second conviction, it makes the prior conviction of a similar offense a part of the description and character of the offense intended to be punished, and the fact of such prior conviction must be charged and proved.
3. An indictment or information charging a defendant with being "a persistent violator" under sec. 19, chap. 11 1915 Session Laws, must contain a specific averment of the previous conviction, that act constituting an essential element of the offense defined by this section.
4. Under the provisions of sec. 19, chap. 11, 1915 Session Laws where the defendant is charged in the information with being "a persistent violator," it is for the jury to determine by a unanimous verdict whether or not the accused is guilty of a felony, and this can only be determined by proof of a former conviction adduced at the trial.
[As to constitutionality of statute imposing a heavier penalty for second offense, see note in 64 Am.St. 378]
APPEAL from the District Court of the First Judicial District, for Shoshone County. Hon. William W. Woods, Judge.
Action charging defendant, as a persistent violator, with the unlawful possession of intoxicating liquor. Judgment of conviction affirmed.
Affirmed.
Therrett Towles, for Appellant.
The lower court erred in permitting the jury to be advised in any way and the state to prove before the jury the prior conviction of defendant of a violation of the prohibition act upon his prosecution as a persistent violator of the act.
H. J. Hull, T. A. Walters, Atty. Genl., A. C. Hindman and J. P. Pope, Assistants, for Respondent.
In the absence of a statute (as in Idaho) prescribing when the proof of a former conviction may be made, it may be proved on the trial and before the conviction of the second offense.
The appellant was informed against for unlawfully having in his possession intoxicating liquor. The information, after alleging the particular offense, contained the following averment: "and he, the said Walter Scheminisky, having theretofore and on the sixth day of October, 1916, been adjudged guilty of a violation of the provisions of said act other than section 16 thereof." He was tried and convicted. This is an appeal from the judgment.
The errors assigned are based upon the action of the trial court in permitting the prosecuting attorney, over the objection of appellant, in examining the jury upon their voir dire, to advise them that the information charged that defendant had previously been convicted of a violation of the prohibition act, and in permitting the clerk to read to the jury that portion of the information so charging him, and in permitting the prosecuting attorney in his opening statement to the jury to refer to the fact that defendant had previously been so convicted, and also in the admission in evidence of a certified copy of the judgment of the prior conviction and in the refusal of the court to give to the jury Instruction No. 2-A requested by defendant.
It is the contention of appellant that the action of the court complained of in appellant's assignments of error deprived him of the legal presumption of innocence and prejudiced the jury against him; that the fact of his prior conviction did not become material until after his guilt of the second offense had been determined, and then only for the purpose of enabling the court to impose the proper punishment.
We are satisfied by the great weight of authority that the appellant's contention cannot be upheld. It is true, as contended by appellant, that sec. 1093, subd. 1, of Kerr's Penal Code of California, inter alia, provides that "in cases where it charges a previous conviction, and the defendant has confessed the same, the clerk in reading it shall omit therefrom all that relates to such previous conviction."
But this is where the indictment or information charges a felony. Section 7855, Idaho Rev. Codes, contains no such provision. Thus the case of People v. Sansome, 84 Cal. 449, 24 P. 143, and other cases cited by counsel under similar statutes, have no application to the case at bar.
Section 19, chap. 11, 1915 Session Laws, under which this information was drawn and conviction had, is as follows:
The weight of authority supports the view that under such statutes where a charge is brought for a second offense, and it is sought to convict and punish a defendant as a persistent violator, the former conviction must be alleged in the indictment or information and proved at the trial. (Evans v. State, 150 Ind. 651, 50 N.E. 820; Tuttle v. Commonwealth, 68 Mass. 505, 2 Gray 505; Commonwealth v. Harrington, 130 Mass. 35; People v. Sickles, 156 N.Y. 541, 51 N.E. 288; Johnson v. People, 55 N.Y. 512; Johnson v. People, 65 Barb. 342; State v. Cox, 69 N.H. 246, 41 A. 862; State v. Moore, 121 Mo. 514, 42 Am. St. 542, 26 S.W. 345; State v. Manicke, 139 Mo. 545, 41 S.W. 223; Bandy v. Hehn, 10 Wyo. 167, 67 P. 979; Clark's Crim. Proc., 203; 12 Cyc. 950.)
The supreme court of Massachusetts, in one of the cases above cited, states the rule and the reason therefor in the following language:
(Tuttle...
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State v. Bennion
...The Idaho Supreme Court has interpreted the Constitution in such fashion for a lengthy period of time. See, e.g., State v. Scheminisky, 31 Idaho 504, 174 P. 611 (1918). The meaning of the term "right to trial by jury" has generally been drawn from the meaning ascribed to the term at the tim......
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Advisory Opinion to Senate
...preserves a right to a trial by a twelve-man jury. Alford v. State ex rel. Attorney General, 170 Ala. 178, 54 So. 213; State v. Scheminisky, 31 Idaho 504, 174 P. 611; Povlich v. Glodich, 311 Ill. 149, 142 N.E. 466; State v. Wells, 69 Kan. 792, 77 P. 547; Markham v. State, supra; State v. Ja......
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Apprendi v New Jersey
...68 Mass. 505 (1854))); State v. Smith, 129 Iowa 709, 711-712, 106 N. W. 187, 188-189 (1906) (similar); State v. Scheminisky, 31 Idaho 504, 506-507, 174 P. 611, 611-612 (1918) 9 This is not to deny that there may be laws on the borderline of this distinction. In Brightwell v. State, 41 Ga. 4......
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State v. Johnson
... ... § 1-213; and I.C. § 1-1622. We are not unaware of the fact that this Court has previously held that when an accused ... is charged with being a persistent violator of the law the former convictions must be alleged in the indictment or information and proved at the trial. State v. Scheminisky, 31 Idaho 504, 174 P. 611; State v. Dunn, 44 Idaho 636, 258 P. 553. We nevertheless conclude that no procedure, no matter how time honored it may be, is immune from judicial scrutiny and consequent alteration if such procedure has the effect of denying an accused a fair and impartial trial ... ...