State v. Webb

• Decision Date: 31 January 1955
• Docket Number: No. 8186,8186
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Burton F. WEBB, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 634

279 P.2d 634

76 Idaho 162

STATE of Idaho, Plaintiff-Respondent, v. Burton F. WEBB, Defendant-Appellant.

No. 8186.

Supreme Court of Idaho.

Jan. 31, 1955.

Tom F. Alworth, Filer, for appellant.

Robert E. Smylie, Atty. Gen., Edward J. Aschenbrener, Asst. Atty. Gen., Max G Lloyd, Pros. Atty., and William J. Langley, Deputy Pros. Atty., Twin Falls, for respondent.

ANDERSON, Justice.

May 3, 1954 the Prosecuting Attorney of Twin Falls County filed a felony information against appellant, charging him with driving a motor vehicle while under the influence of intoxicating liquor, second offense, alleging in substance and among other things, that on or about February 23, 1954, appellant wilfully, knowingly and feloniously operated a certain automobile upon a certain street in Twin Falls, Idaho, while he was under the influence of intoxicating liquor; that his act of so driving the motor vehicle upon a public highway while under the influence of intoxicating liquor as alleged, was the second offense thereof committed by said appellant, he having been previously convicted thereof under the laws of the State of Idaho in the justice's court of Twin Falls precinct, Twin Falls County, Idaho, March 30, 1953.

To this information appellant filed a demurrer based upon the grounds that Section 49-502, I.C., and Section 49-561, I.C., under which appellant was convicted March 30, 1953, were repealed by the 1953 Legislature and replaced by Section 49-520.2, I.C., effective January 1, 1954 and that the latter section completely governs all offenses for driving motor vehicles while under the influence of intoxicating liquor since said date.

After a hearing on the demurrer, it was overruled. The case, tried before a jury, resulted in a verdict of conviction. A motion in arrest of judgment was then made by appellant based upon the same grounds as was his demurrer to the information. The motion was denied and appellant was sentenced to a term in the penitentiary as a second offender.

Appellant contends the court erred in overruling his demurrer and motion in arrest of judgment and in the admission of evidence pertaining to the analysis of his blood.

The State in its brief contends that appellant should have moved to strike all evidence as to the prior conviction, rather than having demurred to the information.

The objection that the information in a criminal case does not state facts sufficient to constitute a public offense, may first be made in the trial court, either by demurrer to the information or at the trial under a plea of not guilty, or after the trial by a motion in arrest of judgment. State v. Hinckley, 4 Idaho 490, 42 P. 510; State v. Sedam, 62 Idaho 26, 107 P.2d 1065; State v. Schirmer, 70 Idaho 83, 211 P.2d 762; State v. Slater, 71 Idaho 335, 231 P.2d 424; Sections 19-1703(4), 19-1711, and 19-2408, Idaho Code.

Section 19-1516, I.C., among other things, provides that a defendant, on arraignment, may move to set aside, demur, or plead to, the indictment. Section 19-1304, I.C., makes the provisions of the statutes concerning an indictment applicable to an information.

Appellant's demurrer and motion in arrest of judgment were proper pleadings in this case, although they may not have been his exclusive remedy. We fail to find that the motion in arrest of judgment has been waived, as contended by the State, since the record shows the trial court denied the motion.

The question then arises whether the District Court was correct in overruling the demurrer and denying the motion in arrest of judgment.

At the time of appellant's first conviction March 30, 1953, Sections 49-502 and 49-561. I.C., were the law. They provided:

'It shall be unlawful and punishable as provided in section 49-561 for any person whether licensed or not who is an habitual user of narcotic drugs or any person who is under the influence of intoxicating liquor or narcotic drugs to drive any vehicle upon any highway within this state.' Section 49-502, I.C.

'Every person who is convicted of a violation of section 49-502 relating to habitual users of narcotic drugs and driving while under the influence of intoxicating liquor or narcotic drugs shall be punished by imprisonment in the county or municipal jail for not less than thirty days nor more than six months or by fine of not less than $100.00 nor more than $300.00 or by both such fine and imprisonment. On a second or subsequent conviction he shall be imprisoned in the state penitentiary at hard labor for not less than two years and not more than five. * * *' Section 49-561, I.C.

The above Sections remained the law until January 1, 1954 when they were repealed and simultaneously re-enacted in part as Section 49-520.2, Idaho Code. The parts in that Section applicable to this case are:

'(a) It is unlawful and punishable as provided in paragraph (d) of this section for any person who is under the influence of intoxicating liquor to drive or be in actual physical control of any vehicle within this state.

* * *

* * *

'(d) Every person who is convicted of a violation of this section shall be punished by imprisonment in the county or municipal jail for not less than thirty days nor more than six months or by fine of not less than $100 nor more than $300 or by both such fine and imprisonment. On a second or subsequent conviction he shall be imprisoned in the state penitentiary at hard labor for not less than two years and not more than five. * * *'

Appellant contends, as Sections 49-502 and 49-561, I.C., were repealed, that a prior conviction thereunder now has no legal effect; and that the provisions of Section 49-520.2, I.C., were intended to apply only to one or more convictions under that Section after it went into effect January 1, 1954. He contends, in effect, that the offense committed February 23, 1954, must be considered a first offense thereunder and as such was triable in the justice's court and that the information did not state a felony offense as charged. Appellant bases this contention upon the requirement of Section 49-520.2, I.C., that there be a former conviction under 'this section,' which does not refer to a conviction under the statutes originally enacted in 1927. Chapter 260, sections 2 and 59, 1927 Session Laws, page 482.

This Court recently held:

'* * * where a statute is repealed and all of its provisions are at the same time re-enacted, such re-enactment is an affirmance of the old law so that the provisions of the repealed act which are thus re-enacted, continue in force without interruption and all rights and liabilities incurred thereunder are preserved and may be enforced. (Citing cases.)' Ellenwood v. Cramer, 75 Idaho 338, 272 P.2d 702, at page 706.

'The repeal of any law creating a criminal offense does not constitute a bar to the indictment and punishment of an act already committed in violation of the law so repealed, unless the intention to bar such indictment and punishment is expressly declared in the repealing act.' Section 67-513, I.C.

In the case now before the Court, it is to be noted all of the statutory provisions repealed and those simultaneously re-enacted are not the same, but as far as this case is concerned, the statute under consideration makes it unlawful for any person who is under the influence of intoxicating liquor to drive any...