State v. Legg

93 A. 556, 28 Del. 333, 5 Boyce 333, 1915 Del. LEXIS 9

• Court: New York Court of General Session of the Peace
• Decided: February 3, 1915
• Status: Published

Opinion

Heisel, J.,

delivering the opinion of the court:

The defendant in this case, having a license to sell intoxicating liquor, had been indicted for, and had pleaded guilty to, selling liquor to a minor, and had been sentenced. Afterward, she was again indicted for a like offense. The second indictment, the one now under consideration, alleges in the first, second, third and fourth counts, that the second offense was committed before she had been convicted under the first indictment, and that therefore said counts should be stricken out.

The statute under which the indictment was found is section 165, Revised Code of 1915; the part applicable to the consideration of this motion being as follows:

“It shall be unlawful for any person licensed to, sell liquor * * * to sell, give away, deliver or furnish liquor at any time to a minor * * * and whomsoever shall do so shall be guilty of a misdemeanor and upon conviction thereof shall forfeit and pay a fine of not less than fifty nor more than one hundred dollars; and in case of a second conviction for such misdemeanor, he shall forfeit his license and shall not be capable of receiving a license for the space of two years.”

It is contended by counsel foi the motion that it is not sufficient to allege a violation of the law committed prior to the first conviction, because the proper construction of the statute is, that the defendant must be convicted of an offense committed after the first conviction, in order to subject the offender to the greater penalty, and cite in support of their contention Hawkins, Crim. Pleas, c. 40, § 3; 12 Cyc. 950 (3); 1 Woolen & Thornton on Intoxicating Liquors, § 173; People v. Butler, 3 Cow. (N. Y.) 347; Brown v. Commonwealth, 100 Ky. 127, 37 S. W. 496; Long v. State, 36 Tex. 6; Rand v. Commonwealth, 9. Grat. (Va.) 738; Commonwealth v. Daley, 4 Gray (Mass.) 209; Commonwealth v. McDermott, 224 Pa. 363, 73 Atl. 427; Hyser v. Commonwealth, 116 Ky. 410, 76 S. W. 174; Commonwealth v. Welsh, 2 Va. Cas. 57.

The Attorney General contends that the statute should' be taken literally, that it is not open to construction, and that a sec- and conviction under the statute, no matter when the offense was committed, would subject the offender to the greater penalty.

We think the authorities cited by counsel for the motion fully sustain their contention, that the indictment must allege an offense committed after the first conviction, in order that the greater penalty may apply.

The law seems to be well stated in 12 Cyc. (supra) as follows:

“The statutes increasing the punishment on account of a former conviction do not apply unless the offense for which the defendant is on trial shall have been committed after the conviction, as well as after the commission of the first.”

Should the statute be construed otherwise, we might easily have a situation wherein the lesser penalty would be applied for the second offense, and the greater penalty for the first offense. This certainly was not the intention of the Legislature.

We think the first, second, third and fourth counts of the indictment are bad, for the reasons above stated, and order them stricken out.

(The accused thereupon pleaded guilty and was sentenced as in the case of first offense.)