Bliven v. State

Wisconsin Supreme Court

Bliven v. State

198 N.W. 272, 183 Wis. 557, 1924 Wisc. LEXIS 179

CourtWisconsin Supreme Court

DecidedApril 8, 1924

StatusPublished

Cited by3 cases

This text of 198 N.W. 272 (Bliven v. State) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Bliven v. State, 198 N.W. 272, 183 Wis. 557, 1924 Wisc. LEXIS 179 (Wis. 1924).

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Opinion

Eschweiler, J.

Defendant’s sentence of a year and six months in the state prison was for a present and prior violation of the state prohibition law, each instance being the unlawful possession of privately manufactured distilled liquor. The state prohibition law (ch. 165, sec. 165.01, Stats.), so far as material here, and where other specific penalty is not made, provides by sub. (32) thereof that for violation of its provisions a defendant shall, as an increased penalty for a subsequent -offense, be fined not less than $200 nor more than $2,000 and be imprisoned in the county jail not less than one month nor more than one year.. The severer and state prison sentence here imposed was upon the theory that such was authorized by sec. 4738, Stats. This is found in ch. 359, relating to judgments in criminal cases, and has been in substantially the same form since as early as 1878, and provides in effect that where it-is so al[559]*559leged in proceedings prior to trial and determined or ascertained on the trial or after conviction for an offense punishable by imprisonment in the county jail, by fine, or both, that such defendant had been theretofore sentenced to imprisonment, he may, for such subsequent offense, be imprisoned in the state prison not more than three years nor less than one year.'

On the hearing here the attorney general, representing the defendant in error, very frankly and in a commendable-attitude concedes that the state prison sentence under said sec. 4738 is not warranted.

Ch. 165, supra, the state prohibition law, has defined specific offenses and prescribed specific penalties. It needs no discussion or citation of authorities to arrive at the conclusion that under the situation here disclosed the specific rather than the general statute applies.

It follows therefrom that, the sentence being unwarranted, the judgment, so far as it inflicted the same, must be reversed and set aside.

By the Court. — Judgment reversed, and cause remanded with directions to the trial court to sentence the defendant under ch. 165.

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Eschweiler, J.

Defendant’s sentence of a year and six months in the state prison was for a present and prior violation of the state prohibition law, each instance being the unlawful possession of privately manufactured distilled liquor. The state prohibition law (ch. 165, sec. 165.01, Stats.), so far as material here, and where other specific penalty is not made, provides by sub. (32) thereof that for violation of its provisions a defendant shall, as an increased penalty for a subsequent -offense, be fined not less than $200 nor more than $2,000 and be imprisoned in the county jail not less than one month nor more than one year.. The severer and state prison sentence here imposed was upon the theory that such was authorized by sec. 4738, Stats. This is found in ch. 359, relating to judgments in criminal cases, and has been in substantially the same form since as early as 1878, and provides in effect that where it-is so al[559]*559leged in proceedings prior to trial and determined or ascertained on the trial or after conviction for an offense punishable by imprisonment in the county jail, by fine, or both, that such defendant had been theretofore sentenced to imprisonment, he may, for such subsequent offense, be imprisoned in the state prison not more than three years nor less than one year.'

On the hearing here the attorney general, representing the defendant in error, very frankly and in a commendable-attitude concedes that the state prison sentence under said sec. 4738 is not warranted.

Ch. 165, supra, the state prohibition law, has defined specific offenses and prescribed specific penalties. It needs no discussion or citation of authorities to arrive at the conclusion that under the situation here disclosed the specific rather than the general statute applies.

It follows therefrom that, the sentence being unwarranted, the judgment, so far as it inflicted the same, must be reversed and set aside.

By the Court. — Judgment reversed, and cause remanded with directions to the trial court to sentence the defendant under ch. 165.

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Bluebook (online)

198 N.W. 272, 183 Wis. 557, 1924 Wisc. LEXIS 179, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bliven-v-state-wis-1924.

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