State v. Maltais , 75 N.H. 248 ( 1909 )

  • "If any person . . . shall sell or keep for sale in any quantity any spirituous or distilled liquors, vinus, rectified spirits, fermented, brewed, or malt liquors, wines or any beverage, by whatever name called, containing more than one per cent of alcohol by volume at sixty degrees Fahrenheit, he shall be fined not less than $25 or more than $100, and also shall be imprisoned not less than thirty days or more than sixty days. And for any subsequent offence he shall be fined not less than $100 or more than $200, and imprisoned not less than two months or more than twelve months." P.S., c. 112, s. 15; Laws 1903, s. 122, s. 1; Laws 1905, c. 46, s. 1; Ib. c. 116, s. 1. The information, to which no objection is made, appears to have been intended to charge a "subsequent offence" under this section. The increased penalties are not limited to cases where there has been a previous conviction of the identical offence — a violation of the particular provisions now charged, i.e., an offence proved by precisely similar evidence. State v. Sawyer, 67 Vt. 239; State v. Haynes, 36 Vt. 667. But a respondent is not made liable to them because of a prior conviction of any criminal offence, or of any of the various offences created by the liquor law. The increased penalties are imposed for a subsequent violation of the prohibitions of the section. Hence it is necessary that the prior conviction must be founded upon a charge of such violation. Proof that the respondent had been convicted of a violation of the section, as, for example, of a sale or keeping for sale of "fermented liquor," as charged in the information, might have been sufficient to sustain the verdict. But proof of a conviction upon charge of the unlawful sale of cider did not sustain the information. *Page 250 The sale of fermented cider in less quantities than one barrel is prohibited by section 17, chapter 112, Public Statutes, as amended by section 2, chapter 122, Laws 1903. State v. Kidder, 74 N.H. 302. In this section penalties both for a first and a subsequent offence are provided differing from those in the section the respondent is now accused of violating.

    The substance of the rule asked for by the respondent was that he could not be convicted of a second violation of section 15, as amended, in the absence of evidence of a previous conviction thereunder. As there was no evidence of a previous charge against him of such violation, his conviction upon a plea of guilty to a charge of violating another statutory provision does not authorize the conclusion that he was convicted of a violation of the section under which he is now charged. In the entire absence of evidence tending to sustain the charge of "subsequent offence," the error involved in the failure to give the requested instruction is manifest.

    The argument of the state appears to be that upon evidence sufficient to convict of a sale of cider a conviction of selling "fermented liquors" might have been had, upon the ground that cider is included within that term; and that chapter 116, Laws 1905, amending section 15, chapter 112, Public Statutes, repealed section 16 of the same chapter. But the guilt or innocence of a first offence is not involved; the only question is whether as an historical fact there has been a previous conviction. State v. Adams,64 N.H. 440, 442; People v. Raymond, 96 N.Y. 38, 39. The suggestion of the repeal of section 16, chapter 112, Public Statutes, as amended by section 2, chapter 122, Laws 1903, need not be examined. If sound, it would only establish that the respondent ought to have been charged before the police court with violating section 15, — not that he was so charged.

    Under the complaint of February 10, charging the unlawful sale of cider, whether the subject of sale was "fermented liquors" within the meaning of section 15, or was a "beverage . . . containing more than one per cent of alcohol," was not in issue. Proof of the sale of fermented cider in less quantity than one barrel made out the charge. State v. Jenkins,64 N.H. 375. The charge of an offence in the language of the section was an allegation by the state that the section was in force. The claim of the state, May 1, that the statute was repealed, as a foundation the contention that, February 10, the respondent was convicted of an offence with which he was not charged, is in conflict with fundamental principles of reason and justice as well as technical rules of law.

    Exception sustained.

    All concurred. *Page 251