<p>1. Indictment and Information — Indictment for Second Offense Must Directly and Precisely Describe the Former Conviction.</p> <p>To subject a defendant, indicted for a second offense against the provisions of section 3, chapter 32A, Code 1918, to the superimposed penalty therein provided, the indictment must aver such former conviction directly, not parenthetically, or by way of participial clause, and describe it with sufficient particularity and precision to advise the accused of the charges he must prepare to meet, and enable the court toi determine whether the .statute applies, (p. 657).</p> <p>2. Criminal Law — In Statute Imposing Additional Penalty for Second “Conviction” That Word Denotes Finality.</p> <p>Where a former conviction, is made the ground of some disability or penalty to be imposed upon a defendant found guilty of a second offense, the word “conviction,” as used in the statute, generally connotes finality of judicial ascertainment, so far as the trial court is concerned, (p. 658).</p> <p>3. Indictment and Information — Indictment for Second Offense Should Aver Sentence on Former Conviction.</p> <p>An indictment charging such former offense should aver not only the conviction, as represented by the' jury’s verdict, but also the sentence based thereon, in order to show that the proceeding for the first offense has attained a state of finality so far as the trial court has power to control it. (p. 658).</p> <p>4. Same — Defective Averment as to Former Conviction Permits Trial for Offense Charged.</p> <p>Defective averments respecting a former conviction for the same offense, incorporated in an indictment as a basis for the infliction of an additional penalty in case the accused is found guilty of the principal offense, do not vitiate the whole indictment, hut only such part of it as charges the former convic-' tion. If otherwise sufficient, the accused may be. put to trial for the prinicpal offense charged against him. (p. 659).</p> <p>■ 5. Criminal Law — 'indictment and Information — Proof of Former Conviction Not Required Where Defendant Confesses It.</p> <p>Ordinarily it is the duty of the state not only to plead, by' proper averment, the fact of the former conviction, but also to prove it by the introduction of the record evidence pertaining thereto; but where the defendant, by voluntary and unretracted admission in open court, confesses a prior conviction, properly averred, there is no necessity for the introduction of formal proof thereof, (p. 660).</p> <p>6. Same — Where Averment as to Prior Offense is Defective Admission of Former Conviction is Not a Confession Permitting Additional Punishment.</p> <p>But where the averment respecting the prior offense is defective, because uncertain and indefinite, an admission by accused of former conviction does not constitute a judicial confession thereof, subjecting him to the additional penalty provided by statute, though made during and for the purpose of the trial, since that portion of the indictment is vitiated by the defect and no longer constitutes part of the offense- charged against him. (p. 660).</p> <p>(Williams, President, absent.)</p> <p>(Ritz, Judge, dissenting in part.)</p>
Good law ✅— No negative treatment on recordhow we know
Reversed and remanded · Decided 1920-09-21
How this case has been cited
Cited by 22 later decisions — most recently July 1989
3 federal appellate · 17 state decisions
Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.
¶2I cannot concur in so much of the opinion in this case as holds the indictment insufficient to charge a felony because it fails to allege the sentence, inflicted upon the defendant upon the former conviction. It is held in the opinion that when the legislature used the word “conviction” it meant not only that the accused party was found guilty, but that a judgment was rendered upon such finding, but when this word is used .in an indictment found under the act of the legislature the court is unable to determine what the pleader meant, or, rather, that the word must be given its ordinary meaning, that is, that the accused party was simply found guilty without any judgment ever having been pronounced upon such finding. That the word conviction in a statute like this means not only a finding, by the jury, or other tribunal, that the accused is guilty, but that a judgment has been pronounced uppn such finding,' is beyond question. 2 Words & Phrases, p. 1585; 1 Words & Phrases (see. ser.) p. 1043. I am unable to understand why a word when used in an act of the legislature has such a definité and certain signification, and when used in an indictment dra.wn .under that act has no definite and certain meaning, or is so indefinite and uncertain in its meaning that the court cannot tell what is *664meant by it. I -would hold that when such a word is used in an indictment drawn under a statute it has the. same, meaning that it has in the. statute, and if a definite and certain meaning can be attributed to1 it. when used by the legislature, the same definite and certain meaning will be given it when used by the pleader in drawing an indictment unde,r the legislative act.
