Opinion
No. 4900.
Decided December 17, 1929.
CRIMINAL LAW — CONVICTION OF PERSISTENT VIOLATION OF PROHIBITION LAW WILL BE REVERSED, WHERE EVIDENCE SHOWING PRIOR CONVICTION WAS NOT INCLUDED IN BILL OF EXCEPTIONS (COMP. LAWS 1917, § 3345, AS AMENDED BY LAWS 1919, c. 66). Conviction of being persistent violator of Prohibition Act, Comp. Laws 1917, § 3345, as amended by Laws 1919, c. 66, will be reversed,
Corpus Juris-Cyc. References:
Criminal Law, 17 C.J., § 3463, p. 172, n. 42. where record of prior conviction received in evidence was not made part of bill of exceptions and there was nothing in bill of exceptions to show when such other action was tried, its nature, nor verdict rendered, since appellate court is bound by record and such record did not show prior conviction.
Appeal from District Court, Fourth District, Uintah County; George W. Worthen, Judge.
Charles Green was convicted of being a persistent violator of the Prohibition Law, and he appeals.
REVERSED, AND REMANDED WITH DIRECTIONS.
Dallas Young, of Vernal, for appellant.
George P. Parker, Atty. Gen., and Lawrence A. Miner, Asst. Atty. Gen., for the State.
The defendant was convicted of being a persistent violator of the provisions of the law of this state "prohibiting the manufacture and use of intoxicating liquors and regulating the sale and traffic therein." He was sentenced to serve an indeterminate term in the state prison, and appeals. One of the assignments of error upon which the appellant relies for a reversal of the judgment is that the verdict of the jury and the judgment are not supported by the evidence. Comp. Laws Utah 1917, § 3345, as amended by Laws of Utah 1919, chapter 66, contains this provision:
"A person having once been convicted of a violation of any of the provisions of this title, except Section 3361, who thereafter violates the provisions thereof, shall be considered a persistent violator of this title, and shall be deemed guilty of felony, and, upon conviction thereof, shall be imprisoned in the State prison at hard labor for not less than three months nor more than two years."
The bill of exceptions purporting to contain all of the evidence is brought here for review. It contains a stipulation of the district attorney and the then attorney for the defendant wherein it is stated: "It is hereby stipulated and agreed by and between the State of Utah and Charles Green, by their respective attorneys herein, that the above and foregoing proposed bill of exceptions of the defendant Charles Green, consisting of one volume of transcript bearing pages 1 to 165 inclusive, together with the certificate of Adelbert Bigler, reporter therein, contains all of the evidence heard and testimony taken at the hearing and trial of said cause."
During the course of the trial the files in an action tried in the district court of Uintah county, Utah, were received in evidence. It is made to appear that in that action the state of Utah was plaintiff and Charles Green was defendant. Evidence was offered tending to show that the Charles Green who is named as defendant in that action is the same person as the defendant in this action. The files so received in evidence are not a part of the bill of exceptions, and there is nothing in the bill of exceptions to show when the other action was tried, the nature of the action, nor the verdict rendered. An appellate court is bound by the record brought before it for review. There is no evidence in the record brought here for review which tends to show that the defendant has, prior to the commencement of this action, been convicted of any violation of the prohibition law of this state.
The judgment is reversed, and this cause is remanded to the district court of Uintah county with directions to grant a new trial.
CHERRY, C.J., and STRAUP, EPHRAIM HANSON, and FOLLAND, JJ., concur.