State v. Small

• Decision Date: 16 March 1888
• Citation: 14 A. 727,64 N.H. 491
• Court: New Hampshire Supreme Court
• Parties: STATE v. SMALL.

14 A. 727

64 N.H. 491

STATE

v. SMALL.¹

Supreme Court of New Hampshire. Coos.

March 16, 1888.

Indictment under Gen. Laws, c. 109, § 13, for keeping spirituous liquor for sale, with an averment that the defendant "has previously been convicted of a violation of section thirteen of chapter 109 of the General Laws, in regard to the keeping for sale of spirituous liquor." The question was reserved whether the indictment sufficiently describes a "subsequent offense." Other questions raised in this ease were decided in State v. Fagin, infra, and State v. Adams, 13 Atl. Rep. 785.

J. H. Dudley, for the State.

Aldrich & Remick, for defendant.

Gen. Laws, c. 109, § 23, is in conflict with article 15 of the bill of rights. Com. v. Harrington, 130 Mass. 35.

DOE, C. J. The provision of Gen. Laws, c. 109, § 23, that the record of a former conviction need not be "set forth particularly" in an indictment for a second offense, and that "it shall be sufficient to allege briefly that such person has been convicted of a violation of any provision of this chapter, as the case may be," implies that there must be a statement of the record if it is relied on with a view of charging the defendant with the higher penalty. Tuttle v. Com., 2 Gray, 505, 507. The judgment need not be set forth literally; but he is entitled to a description that will enable him to find the record, to apply for a correction or reversal, and to make preparation for a trial of the question whether he is the convict. A construction less favorable to him would not be consistent with his constitutional...