Opinion
Decided February 21, 1927.
Criminal law — Second offenses — Final judgment in first proceeding necessary — Error proceedings pending with respect to first offense — "Offense" and "conviction" synonymous.
It is the final judgment which determines whether there is a first or second offense, and before one can be charged with a second offense the first proceeding must have resulted finally in sustaining conviction, and hence one cannot be convicted of a second offense while proceedings with respect to the first offense are pending undecided before an appellate court, the word "offense" being equivalent to the word "conviction."
ERROR: Court of Appeals for Cuyahoga county.
Mr. Henry Levine, for plaintiff in error.
Mr. E.C. Stanton, for defendant in error.
This case comes into this court on error to the common pleas court of Cuyahoga county, and the question to be decided is whether, where a statute provides one sentence for the first offense, with a trial to a court, and another sentence of a severer nature because of imprisonment, with trial to a jury, there can be a trial and sentence under the statute for a second offense while the proceedings with respect to the first offense are pending undecided before a court of appellate jurisdiction.
It is charged that there was error in the proceedings below, in that the court while such a situation existed, tried the defendant under a charge for a second offense and sentenced him accordingly. Analyzing the question, it is obvious that if the proceedings are appealed there is such final determination of the case as results in vitiating the proceedings and the sentence, and that there and thereupon the trial and sentence for a second offense would be in reality for a first offense, and thus it would be made to appear that the word "offense" used in the statute is equivalent to the word "conviction" for an offense, because it is clear that where the proceedings are pending on error in a higher court the question whether the defendant committed a first offense is to be decided by final adjudication, and not by the mere fact of arrest and trial had.
It is the final judgment in the case which necessarily determines the question whether there is a first or second offense, and therefore it is our judgment that before one can be charged with a second offense the first proceeding must have resulted finally in sustaining the conviction, as otherwise a discharge acquitting the defendant would wipe out the legal character of the charge known as a first offense, and consequently, under such legal status, there could be no second offense.
Authority for such reasoning is found in Carey v. State, 70 Ohio St. 121, 70 N.E. 955, which, in the second paragraph of the syllabus, holds:
"The term `offense,' as used in the last-named section, is the equivalent of conviction. Hence an affidavit for prosecution under said act which charges three separate sales to different persons on the same day, but does not allege a previous conviction, is in legal effect a charge of a first offense only, and the party so charged is not entitled to be tried by a jury."
We also cite the cases of State v. Volmer, 6 Kan. 379, and Commonwealth v. McDermott, 224 Pa., 363, 73 A. 427, 24 L.R.A., (N.S.), 431.
In the McDermott case the court used in its opinion the following language:
"It is no answer to this, that before he was tried sentence had been passed on the first indictment, for, in the end, he was tried for what he did on December 11, 1907, when, if at all, his offense was committed, and that was just two months before the court finally disposed of the first indictment against him by entering judgment upon the verdict. Before that time no one could tell whether he had been guilty of a first offense."
Therefore, we are of the opinion, that, while the word "conviction" is not in the statute in the case at bar, the word "offense" used therein is equivalent to the word "conviction," and a logical analysis of the question raised forces but one conclusion, which is that there must be a final adjudication of the first offense before it can be decided that there is a second offense, because the main question touching the second offense is whether there was any offense.
In the case at bar, in the magistrate's court, a record of conviction of the first offense was introduced for the purpose of showing that the case on trial was a second offense. Under the reasoning herein, it is obvious that this class of testimony would be incompetent, for the reason that there had been no final adjudication of the question as to the first offense, and therefore none as to any offense.
Bearing upon the question as to whether an offense is equivalent to conviction, we quote from Section 3155, page 1341, of Volume 16 Corpus Juris, headed "Necessity of Final Judgment for First Offense," as follows:
"Since the word `conviction,' when made the ground of some disability or special penalty, means a final adjudication by judgment, in a jurisdiction where it is necessary for a conviction to precede the commission of the second or subsequent offense, in order to inflict the enhanced penalty for a second conviction it has been held that sentence must be pronounced on the former conviction, and that the judgment thereon must become final."
From an examination of the record in the instant case it appears clear that the sentence imposed in the second case is unwarrantable in law, for the reason that it is excessive to the sentence imposed by the wording of the statute, because it involves the expenses of numerous jurors summoned to appear to try the case. Of course, if there were no error in the present record except this, this court would have power to order a new sentence in conformity to the law. That alone would not be ground for reversal, because there would be no prejudicial error. It is, however, a serious error and must fall with the other fatalities to which reference is herein made.
Holding thus, the judgment of the lower court is hereby reversed, and the cause is remanded for further proceedings according to law.
Judgment reversed and cause remanded.
LEVINE, J., concurs.
VICKERY, J., not participating.