Weeks v. State

• Decision Date: 02 February 1925
• Docket Number: No. 14.,14.
• Citation: 127 A. 345
• Parties: WEEKS v. STATE.
• Court: New Jersey Supreme Court

127 A. 345

WEEKS

v. STATE.

No. 14.

Supreme Court of New Jersey.

Feb. 2, 1925.

Error to Court of Quarter Sessions, Atlantic County.

William Weeks was convicted of violation of the prohibition laws, and he brings error. Judgment modified.

Argued October term, 1924, before GUMMERE, C. J., and PARKER arid KATZENBACH, JJ.

Walter Comer, of Atlantic City, for plaintiff in error.

Louis A. Repetto, of Atlantic City, for the State.

PARKER, J. The plaintiff in error was arraigned in the Atlantic sessions on two indictments, each in three counts; the first count charged the selling of liquor, the second furnishing, and, the third, of possessing it. There was originally a plea of not guilty in each case, but on the 11th day of November these pleas of non vult contendere.

The case seems to have been continued until March 12, 1924, at which time the court imposed a sentence of six months' imprisonment, and $1,000 fine. The claim is that this sentence was erroneous, because in case of a first offense the punishment may be by a fine of not more than $1,000 or by imprisonment for any term not exceeding six months. P. L. 1922, page 615, at page 624, § 33. This, as we have said, was on March 12th. The present writ of error was sued out the following day, March 13, 1924. The return showed that on the 14th day of March the court ordered that the original sentence be vacated, and that defendant be committed to the county jail for the term of six months. This action could only be taken under the act of 1920 (P. L. p. 402), which is an amendment of section 55 of the Criminal Procedure Act of 1898 (P. L. 885). But counsel for plaintiff in error properly urges that the authority to revise the sentence in such cases exists only when no writ of error has been issued to review such judgment, which is the language of the proviso to this section. The writ of error, as we have seen, issued on the 13th and, consequently, there was on the 14th no authority in the trial court to revise the sentence.

Where there is a different and greater punishment for a second offense, the settled law seems to be that an offense is considered a first offense, unless a former offense of the same kind is alleged in the indictment and proved on the trial. The authorities for the plaintiff in error seem to support this view, and we are not favored with any argument or brief on the part of the state.

There was therefore error in imposing a sentence of a fine plus imprisonment, and this error could not be cured by any action of the trial court in undertaking to revise and change this sentence, because the writ of error had intervened. The...