State v. Stewart

• Decision Date: 27 July 1946
• Docket Number: 6929
• Citation: 110 Utah 203,171 P.2d 383
• Court: Utah Supreme Court
• Parties: STATE v. STEWART

171 P.2d 383

110 Utah 203

STATE v. STEWART

No. 6929

Supreme Court of Utah

July 27, 1946

Appeal from District Court, Third District, Salt Lake County; C. E Baker, Judge.

Von B Stewart was convicted of driving a vehicle while under the influence of liquor and of having previously been convicted of the same crime as alleged in the information, and he appeals.

Reversed and remanded.

Gustin & Richards, of Salt Lake City, for appellant.

Grover A. Giles, Atty. Gen., Herbert F. Smart, Asst. Atty. Gen., and Brigham E. Roberts, Dist. Atty., of Salt Lake City, for respondent.

McDonough Justice. Larson, C. J., and Pratt, Wade, and Wolfe, JJ., concur.

OPINION

McDonough, Justice.

Defendant was found guilty of the

"crime of driving a vehicle while under the influence of liquor and of having previously been convicted of the same crime as alleged in the information,"

and he appeals. In the first part of the information defendant is accused of the

"crime of driving a vehicle while under the influence of intoxicating liquor," in violation of Sec. 57-7-111(a), U. C. A. 1943.

Following the specification of the date and place in Salt Lake County of the alleged commission of the offense, there appears in the information three additional paragraphs. In the first two it is alleged that on March 10, 1943, and on April 7, 1944, defendant was convicted in Davis county of the crime of driving a vehicle while under the influence of intoxicating liquor. In the third additional paragraph it is charged that he was convicted of driving an automobile while under the influence of intoxicating liquor in violation of a municipal ordinance of Salt Lake City on May 1, 1943. The above cited statute reads as follows:

"(a) It is unlawful and punishable as provided in subdivision (b) of this section for any person * * * who is under the influence of intoxicating liquor or narcotic drugs to drive or be in actual physical control of any vehicle within this state.

"(b) Every person who is convicted of a violation of this section shall be punished upon a first conviction by imprisonment for not less than 30 days nor more than 6 months, or by a fine of not less than $ 100 nor more than $ 299, or by both such fine and imprisonment, and on a second or subsequent conviction, or on a conviction under this section subsequent to a conviction under an ordinance in Section 33(a) of this act, shall be punished by imprisonment for not less than 90 days nor more than one year, and, in the discretion of the court, a fine of not more than $ 1,000. For the purpose of this section such second violation shall have occurred within three years of the preceding violation."

In his opening statement the prosecuting attorney said that he would prove that defendant

"has been convicted a number of times for driving an automobile while under the influence of intoxicating liquor."

Defendant's counsel objected to such statement and moved the court to declare a mistrial. The court denied the motion, but admonished the jury to disregard the statement. However, the court subsequently ruled that evidence of the prior convictions of the defendant would be received in evidence in connection with the trial of the substantive offense, and evidence of pleas of guilty to prior offenses in two different courts was admitted over objections of defendant. In addition to instructions as to proof of driving while under the influence of intoxicating liquor, the trial court charged the jury that if they found defendant guilty, then in that event they should further consider whether the state had proved beyond a reasonable doubt that defendant had previously been convicted of the same type of offense as alleged in the information.

By his assignments of error, appellant contends: (1) That the evidence did not warrant conviction. (2) That there was no competent proof of prior convictions. (3) That evidence of prior convictions for drunken driving may not be received before the jury has returned a verdict on the substantive charge.

Notwithstanding the conflict in the evidence, there was sufficient competent evidence of driving a vehicle while under the influence of intoxicating liquor, to support a verdict finding defendant guilty of drunken driving. The motion for directed verdict was therefore properly denied. Though evidence of prior convictions was introduced before a determination of the issue on the substantive charge, the admission of such evidence, even if erroneous, would not warrant the court in directing an acquittal.

The appellant alleges that there was not competent evidence of prior convictions. He contends that the evidence shows that he pleaded guilty as a matter of convenience, and that a plea of guilty does not amount to a conviction. Such novel argument is specious. Unless timely withdrawn, a plea of guilty places a defendant in the same position as a verdict of a jury finding him guilty of the charge after a fair and impartial trial. A plea of guilty is a confession of the correctness of the accusation which dispenses with the necessity of proof thereof.

The contention is also made that at no stage of the proceedings was there any foundation for any evidence as to prior convictions for the reason no proof as to jurisdiction of the justice courts in which defendant pleaded guilty, was first offered. Likewise, that there was no certified copy of a judgment of conviction introduced. In this case the complaints as filed in the justice courts were introduced, on which complaints there was endorsed in the handwriting of the justice, the plea of guilty and the memorandum of sentence pronounced. The justice testified to making the notations and identified the defendant and the proceedings shown by the notations. The fact that in the city court there was a card index file, and no judgment book, and in the justice court there was some informality, would not operate to make the evidence of the convictions either insufficient or incompetent. The particular form of record-keeping in those courts is not specified in detail by statute. The records actually kept and as identified by the justice of the peace and by the clerk of the city court, show unequivocally what occurred in those courts. The evidence of prior convictions and introduction of the questioned exhibits showing pleas of guilty and the sentence pronounced and carried into effect, was competent and sufficient on the issue of prior convictions. See Rheuark v. State, 78 Okl. Cr. 121, 144 P. 2d 754.

The remaining question as to the prior convictions is whether the issue of defendant's guilt of drunken driving in violation of Sec. 57-7-111(a), should first have been determined before any evidence of prior offenses was introduced. The state takes the position that under the above quoted statute, a person once convicted of drunken driving becomes in effect a persistent violator, and that proof of the prior offense is a necessary element in the substantive offense of persistent violation. However, the statute here does not declare that a person who having once been convicted of drunken driving shall be deemed a persistent violator in case of a subsequent offense. All the statute purports to do is to impose a greater punishment for a subsequent crime. In this respect it differs from a statute which defines the status of being a persistent violator and from Sec. 103-1-18, U. C. A. 1943, defining an habitual criminal. It is true that the penalty prescribed for the first offense of drunken driving is a penalty imposed for a simple misdemeanor, and hence triable in a justice's court; whereas, on conviction for a subsequent offense the penalty is that which might be imposed in the case of an indictable misdemeanor for which defendant would be entitled to a preliminary hearing, and which case is triable in the district court.

Rheuark v. State, supra, appears to assume that proof of the prior offense under a...