Opinion
No. 5041.
Argued June 6, 1962.
Decided June 29, 1962.
1. Where certain evidence allegedly improperly admitted in criminal proceedings before the municipal court may or may not be presented in the Superior Court to which an appeal has been taken from the conviction, it was deemed that no occasion was presented to the Supreme Court to determine the propriety of the action taken by the municipal court.
2. In a criminal complaint for operating a motor vehicle while under the influence of intoxicating liquor, second conviction (RSA 262:19) the former conviction may be established by the original court record or a certified copy thereof, or by testimony of the clerk of that court, or by the record certified by the Commissioner of Motor Vehicles (RSA 259:10, 262:30).
The following reserved case was transferred by Morris, J.:
"Complaint and Warrant dated September 30, 1960, charging the respondent with operating a motor vehicle while under the influence of intoxicating liquor, as a second offense, and returnable to the Pembroke Municipal Court. A hearing before the Pembroke Municipal Court was held October 21, 1960 during which hearing, at the close of the State's evidence, counsel for the respondent moved to dismiss on the ground that the State had failed to introduce any evidence of a prior conviction for the same offense, against this same respondent. Thereupon the Court, of his own motion, reopened the case on behalf of the State, and by cross-examination of the prosecuting witness, elicited some evidence to the effect that said prosecuting witness was the complaining officer against this respondent on a prior occasion involving a similar charge, and that he was present when this respondent, on the prior occasion, was convicted of a similar charge.
"Subsequently to the reopening of the State's case by the Court, the respondent's motion to dismiss was denied, the respondent offered no evidence whatsoever, and was found guilty as charged. This irregular procedure adopted by the Pembroke Municipal Court is noted by the Court himself on the back of the Complaint and Warrant.
"The respondent seasonably appealed to the Superior Court and duly filed a motion to quash for the reason that at the trial before the Pembroke Municipal Court, the State failed to introduce any evidence of a prior conviction against the respondent and for the reason that the Pembroke Municipal Court erroneously reopened the State's case and erroneously elicited improper evidence on behalf of the State's case. A hearing was held April 10, 1961 on respondent's motion to quash, and on May 8, 1961, the Superior Court issued the following order:
"`I will grant your motion to certify the question to the Supreme Court as to whether or not you are entitled to have a motion to quash granted, without ruling.'"
William Maynard, Attorney General, Irma A. Matthews, Law Assistant, and Paul A. Rinden, county attorney (Mrs. Matthews orally), for the State.
Sheehan, Phinney, Bass, Green Bergevin (Mr. Gerard O. Bergevin orally), for the defendant.
The defendant's motion to quash the complaint on various grounds related to what occurred in the municipal court. Inasmuch as the defendant's appeal is pending in the Superior Court and the evidence which was allegedly admitted erroneously in the municipal court may or may not be presented in the Superior Court, we have no occasion to pass on the validity of the motion to quash. State v. Cook, 96 N.H. 212. All rights of the defendant can be protected by the appeal that he has taken. 2 Wharton's Criminal Procedure (10th ed.) s. 1455.
If the question of proving the former conviction is raised on the appeal, this can be done by several methods, none of which is particularly burdensome. The original court record or a certified copy of it prepared by the clerk or the judge of the Hooksett municipal court would, of course, be sufficient. RSA 516:30; State v. Cox, 69 N.H. 246; State v. Deane, 101 N.H. 127, 130. Another means of proving the prior conviction would be to call the clerk of that court as was done in State v. Miller, 102 N.H. 260. Still another method of proving the former conviction would be the record certified by the Commissioner of Motor Vehicles under RSA 259:10, as implemented by RSA 262:30. State v. Cardin, 102 N.H. 314. See also, RSA ch. 520; 1 Underhill's Criminal Evidence (5th ed. 1956) s. 222.
Remanded.
All concurred.