Summary
In Brantley, as in Gordon, supra, the court was confronted with a statute which punished an initial violation of its provisions as a misdemeanor and raised the penalty to that of a felony "for each subsequent offense."
Summary of this case from State v. HendersonOpinion
No. 38725
Decided March 10, 1965.
Criminal law — Violation of penal statute — First offense punished as for misdemeanor — "Subsequent offense" punished as for felony — Second violation punished as "subsequent offense" — Although occurring prior to conviction for previous violation.
Where a statute provides that one who violates it shall be punished as for a misdemeanor "for a first offense" and punished as for a felony "for each subsequent offense," a second violation of that statute may be punished as a "subsequent offense" thereunder if the offender has been convicted of a previous violation of that statute before his indictment for the second violation thereof although the second violation occurred prior to his conviction of the previous violation. (Paragraph two of the syllabus of Carey v. State, 70 Ohio St. 121, distinguished.)
APPEAL from the Court of Appeals for Summit County.
On May 11, 1962, the Grand Jury of Summit County filed an indictment stating that they "* * * do find and present that * * * [defendant] * * * on the 12th day of February * * * [1962] unlawfully did own, possess, have on or about his person, in his custody or have under his control a ticket, order or an interest in a scheme of chance known as policy, numbers game or clearing house, * * * contrary to * * * the statute * * * and further do find and present that * * * [defendant] * * * on the 3rd * * * of October * * * 1961, was * * * charged by affidavit for the crime of possession of numbers game ticket, in the violation of Section 2915.111 of the Ohio Revised Code * * * and on the 20th day of March * * * 1962, a jury * * * found said * * * [defendant] guilty of Section 2915.111 * * * and thereafter on March 26, 1962, the court fined said defendant * * * ($300) and costs and sentenced said defendant to * * * (30) days in said case."
Section 2915.111 reads:
"No person shall own, possess, have on or about his person, have in his custody, or have under his control a ticket, order, or device for or representing a number of shares or an interest in a scheme of chance known as `policy,' `numbers game,' `clearing house,' or by words or terms of similar import, located in or to be drawn, paid, or carried on within or without this state.
"Whoever violates this section shall be fined not more than * * * [$500] and imprisoned not more than six months for a first offense; for each subsequent offense, such person shall be fined not less than * * * [$500] nor more than * * * [$1,000] and imprisoned not less than one nor more than three years."
After defendant's plea of "not guilty" and after defendant waived his right to a jury trial, defendant was tried by the court, which found defendant "guilty of the crime of possession of numbers game ticket as charged in the indictment * * *," overruled defendant's motion for a new trial, and sentenced defendant to the penitentiary for an indeterminate sentence of one to three years.
On appeal to the Court of Appeals, that court held that there could be no conviction for a "subsequent offense" since the claimed subsequent offense occurred prior to conviction for the first offense, and that court remanded the cause to the trial court with instructions to impose a penalty as for a first offense.
The cause is now before this court on appeal from the judgment of the Court of Appeals, pursuant to allowance of a motion by the state for leave to appeal.
Mr. John S. Ballard, prosecuting attorney, and Mr. Alfred R. Smith, for appellant.
Mr. J. Franklin Spruill and Mr. Thomas S.E. Brown, for appellee.
Section 2915.111 provides punishment as for a misdemeanor "for a first offense" and punishment as for a felony ( i.e., imprisonment for a maximum term of more than one year. See Sections 1.05 and 1.06, Revised Code) "for each subsequent offense."
Defendant was convicted for a violation of that statute, which took place in October 1961. This conviction was in March 1962. Thereafter, defendant was indicted and convicted as a subsequent offender for a violation of that statute, which occurred in February 1962.
Defendant contends that he cannot be convicted as a subsequent offender because his second violation of the statute occurred before and not after his conviction for the first violation thereof. In other words, he contends and the Court of Appeals held that a violation of the statute could not be a "subsequent offense," within the meaning of this statute, unless such violation occurred after defendant's conviction for a previous violation of the statute.
The effect of this contention and of this holding is either (1) to read the words "first offense" where they occur in the statute as though they read "first conviction" or (2) to insert in the statute a requirement, not expressed therein, i.e., that, in order to be a "subsequent offense," an offense must occur "after a conviction for a first offense."
The ordinary meaning of the word "offense" is "the doing that which a penal law forbids to be done or omitting to do what it commands." On the other hand, a "conviction" is "that legal proceeding which ascertains the guilt of the party upon which the sentence or judgment is founded." Bouvier's Law Dictionary (Baldwin's Century Ed. 1940). In other words, a conviction is a legal ascertainment that an offense has been committed. A conviction is not an essential element of an offense although an offense is always a prerequisite to a conviction.
Thus, it would be necessary, in order to affirm the judgment of the Court of Appeals, either to give other than their ordinary meaning to the words "first offense" in the statute or to add words to the statute which the statute does not contain.
As stated in State v. Dale (1900), 110 Iowa 215, 217, 81 N.W. 453, "the statute does not, in terms, require that the convictions should antedate the offense charged * * *. What reason is there for adding something to the language of the statute?"
As stated in State v. McCormick (1928), 104 N.J. Law 288, 140 A. 297:
"The `offense' took place when the alleged criminal act was committed irrespective of the time of conviction or the plea of guilty, so long, at least, as such conviction or plea of guilty took place before the return of the indictment charging a similar offense as a second offense."
In support of the Court of Appeals judgment, defendant has referred to Hawkins v. State (1928), 27 Ohio App. 297, 161 N.E. 284; State v. Bowman (1962), 116 Ohio App. 285, 187 N.E.2d 627; Staniforth v. State (1927), 24 Ohio App. 208, 156 N.E. 924; and Harvey v. Myers, Supt. (1959), 110 Ohio App. 469, 169 N.E.2d 310.
None of these authorities represent a holding or support the conclusion that there can be no conviction for a "subsequent offense" which occurred before a conviction for a prior offense.
Larney v. City of Cleveland (1878), 34 Ohio St. 599, does hold that "where a greater punishment may be inflicted upon a conviction for a second or subsequent violation of a criminal law, than for the first, the fact that the offense charged is a second or subsequent offense must be averred in the indictment or information, in order to justify the increased punishment." In the instant case, the indictment does aver that necessary fact.
Carey v. State (1904), 70 Ohio St. 121, 70 N.E. 955, goes further and states in paragraph two of the syllabus that "an affidavit for prosecution * * * which * * * does not allege a previous conviction, is in legal effect a charge of a first offense only * * *."
In the instant case, the indictment does "allege a previous conviction."
However, the first sentence of paragraph two of the syllabus of the Carey case states further that "the term `offense' as used" in a statute in a manner similar to its use in the statute involved in the instant case "is the equivalent of conviction." This dictum, when taken out of context, would appear at first to support defendant's position. However, as indicated in the opinion at page 125, the term "second offense" would then mean "second conviction."
Thus, if the statute in the instant case is rewritten in accordance with the dictum in the first sentence of paragraph two of the Carey case, it would provide punishment as for a misdemeanor "for a first conviction" and punishment as for a felony "for each subsequent conviction" and thereby it would provide for increased punishment for any conviction, such as that in the instant case, " subsequent" to "a first conviction."
Certainly, the Carey case cannot support in any way a reasonable conclusion that the words in the statute involved in the instant case, "first offense," can be interpreted to read "first conviction" without then having the words "subsequent offense" made to read "subsequent conviction."
We recognize that there are authorities outside Ohio which hold that similar statutory provisions require that an offense must occur after conviction for a prior offense in order to be a subsequent offense. See 25 American Jurisprudence 266, Section 12; 24B Corpus Juris Secundum 466, Section 1960 (5) (b); annotation, 24 A.L.R. 2d 1247, 1249. However, for the reasons hereinbefore stated, we are of the opinion that it is not necessary in order to have a conviction for a subsequent offense under Section 2915.111, Revised Code, that such subsequent offense should occur after a conviction for a first offense. The judgment of the Court of Appeals must, therefore, be reversed and that of the Common Pleas Court affirmed.
Judgment reversed.
ZIMMERMAN, MATTHIAS, O'NEILL, HERBERT, SCHNEIDER and BROWN, JJ., concur.