State Ex Rel. McMullen v. Simpson

277 P. 998, 152 Wash. 389, 1929 Wash. LEXIS 1004

• Court: Washington Supreme Court
• Decided: May 31, 1929
• Docket: No. 21809. Department Two.
• Status: Published

Opinion

Parker, J.

By this original certiorari proceeding in this court, the prosecuting attorney for Clark county, as relator, seeks review of a judgment of the superior court for that county, sentencing George Plummer as upon his being convicted the second time of a misdemeanor violation of our intoxicating liquor prohibition statute; the prosecuting attorney contending that Plummer’s last conviction was, in legal effect, his conviction the third time of a misdemeanor violation of our prohibition statute, and that therefore he should have been sentenced by the superior court to imprisonment in the state penitentiary as for a felony.

Plummer was, by information filed in the superior court for Clark county, first charged by two counts in one information as follows:

“Count I.

“That he, the said George E. Plummer, on or about the 2nd day of July, 1927, in the county of Clark, state of Washington, did, then and there, unlawfully manufacture intoxicating liquor for the purpose óf sale, barter and exchange thereof, contrary to the statutes in such cases made and provided, and against the peace and dignity of the state of Washington.

‘ ‘ Count II.

“That he, the said George E. Plummer, on or about the 2nd day of July, 1927, in the county of Clark, state of Washington, did, then and there, unlawfully keep and have in his possession intoxicating liquor with intent to sell, barter and exchange the same, contrary to the statutes in such cases made and provided, and against the peace and dignity of the state of Washington.” ■

On July 5, 1927, final judgment .of conviction was rendered against Plummer upon each of these counts. On January 10, 1929, Plummer was again, by information filed in the superior court for Clark county, charged as follows:

“The said George Plummer, on or about the 9th day of January, 1929, in the county of Clark, state of Washington, did, then and there, unlawfully keep and have in his possession intoxicating liquor other than alcohol, contrary to the statutes in such cases made and provided and against the peace and dignity of the state of Washington.

“And the court is further informed that on the 5th day of July, 1927, the above named defendant was convicted in the above entitled court of unlawful manufacture of intoxicating liquor for the purpose of sale, barter and exchange thereof.

“And the court is further informed that on the 5th day of July, 1927, the above named defendant was convicted of unlawfully keeping and having in his possession intoxicating liquor with intent to sell, barter and exchange the same.”

Or February 7, 1929, the superior court adjudged Plummer guilty as charged in this information, ruling that his prior conviction under the two counts of the first information constituted, within the meaning of Eem. Comp. Stat., § 7339, his conviction but one time, resulting in his last conviction being his conviction “the second time. ’ ’ The court thereupon sentenced Plummer as for his conviction “the second time,” refusing to sentence him as for his conviction “the third time,” as was then insisted upon by the prosecuting attorney.

It is plain that each offense in question, standing alone, is only a misdemeanor; Eem. Comp. Stat., §§ 7309, 7328, 7338; and Plummer’s last conviction can only be raised to the degree of a felony by holding it to be his conviction “the third time,” under Eem. Comp. Stat., §7339, which, so far as we need here notice, reads as follows:

“Every person convicted the second time of a violation of any provision of this act, for which the punishment is not specifically prescribed, shall be punished by a fine of not less than two hundred nor more than five hundred dollars and by imprisonment in the county jail for not less than thirty days nor more than six months and every person convicted the third time of a violation of any provision of this act shall, for such third and each subsequent conviction, be punished by imprisonment in the penitentiary for not less than one nor more than five years.”

We italicize the words of the statute to be particularly noticed. The record brought here renders it plain that the acts constituting the offenses charged in the first information were committed simultaneously, and that the convictions thereof were also had simultaneously. This, we think, rendered the culmination of that prosecution, in legal effect, only a conviction of Plummer the first time, within the meaning of § 7339, above quoted. This is the substance of our hold ing in State v. Jones, 138 Wash. 110, 244 Pac. 395. This view of the law is in harmony with the rule of strict construction universally applicable to statutes of this nature. The courts should not impute to the legislature an intent to make simultaneous convictions upon separate counts in one information charging simultaneous acts constituting separate misdemeanors in law, other than one conviction for the purpose of raising a single subsequent conviction to the degree of felony, unless such intent is expressed in unmistakable language. We do not think there is any such clear legislative intent expressed in this statute.

The judgment of the superior court is affirmed. •

Mitchell, O. J., Beals, Main, and Tolman, JJ., concur.