People v. Buck

67 N.W. 982, 109 Mich. 687, 1896 Mich. LEXIS 925

Opinion

Montgomery, J.

Respondent was convicted of being a disorderly person, to wit, a common prostitute, and was sentenced to the Detroit House of Correction for two years. The information contained the following language: “Said offense being, and is hereby charged as, a third offense.” There was no description of the previous alleged offenses, nor was it averred that there had been any previous convictions.

It is clear that, under the statute (section 1997al, 3 How. Stat.), it is not only necessary to charge the offense as a second or third offense, as the case may be, but it is also essential to charge that there has been a conviction for such previous offense or offenses; and, properly, the information should state, at least, the date and the occasion of such conviction. Com. v. Harrington, 130 Mass. 35; Ex parte Hiser, cited in Blackburn v. State, 50 Ohio St., at page 436. The case of State v. Gorham, 65 Me. 270, is cited by the prosecutor, but that case does not go far enough to sustain the information in this case as an information for a third offense under our statute. Moreover, the holding in State v. Gorham is based upon a statute. See State v. Wentworth, 65 Me. 247 (20 Am. Rep. 688).

The prosecutor also contends that the respondent is not in position to raise the question, as she pleaded to the information before moving to quash. But we think the assignments alleging error in the charge and in the sentence sufficient to raise the question. In the absence of an averment of previous convictions, a sentence could not lawfully be imposed for a longer term than 30 days.

The conviction will be set aside, and the respondent discharged.

Grant, Hooker, and Moore, JJ., concurred. Hong, C. J., did not sit.