State v. Small

14 A. 727, 64 N.H. 491

• Court: Supreme Court of New Hampshire
• Decided: December 5, 1887
• Status: Published

Opinion

Doe, C. J.

The provision of Gen. Laws, c. 109, s. 23, that the record of a former conviction need not be “ set forth particularly ” in an indictment for a second offence, and that “ it shall be sufficient to allege briefly that such person has been convicted of a violation of any provision of this chapter, as the case may be,” implies that there must be a statement of the record if it is relied on with a view of charging the defendant with the higher penalty. Tuttle v. Com., 2 Gray 505, 507. The judgment need not be set forth literally; but he is entitled to a description that will enable him to find the record, to apply for a correction or reversal, and to make preparation for a trial of the question whether he is the convict. A construction less favorable to him would not be consistent with his constitutional right. The. averment giving him no information of the time, court, or county in which the judgment was rendered, is insufficient. The indictment is good, but not for a subsequent offence.

Case discharged.

All concurred.