Argued February 3, 1965.
Decided March 31, 1965.
1. In a complaint for operating a motor vehicle under the influence of intoxicating liquor, second offense (RSA 262-A:62 (supp)) the State must allege and prove both convictions.
2. Where the respondent was charged with having operated a motor vehicle under the influence of intoxicating liquor, second offense (RSA 262-A:62 (supp)) the fact that there was no evidence introduced to support the prior conviction did not preclude a trial of the respondent for a first offense under the complaint.
3. Such procedure did not constitute an amendment of the complaint by the trial justice.
The defendant was prosecuted for operating a motor vehicle while under the influence of intoxicating liquor, second offense in violation of RSA 262:19 (supp); RSA 262-A:62 (supp). Although the prior conviction was set forth in the criminal complaint, no evidence to support it was introduced and the defendant moved for the dismissal of the complaint at the close of the evidence presented by the State. "The court ruled that on the basis of the evidence presented, there was no evidence supporting a charge of second offense, but that there was sufficient evidence to support a charge of first offense, and on that ground denied the motion, the court stating that any further evidence introduced would be considered only on the issue of whether or not the respondent was guilty of driving under the influence of liquor, first offense."
The defendant excepted to the court's ruling which was reserved and transferred by Chretien, J. RSA 502:24.
William Maynard, Attorney General and Irma A. Matthews, Attorney (Mrs. Matthews orally), for the State.
Danais Danais and Edward J. McDermott (Mr. McDermott orally), for the defendant.
The defendant correctly argues that the State must both allege and prove two convictions if the defendant is to be found guilty of driving a motor vehicle while under the influence of intoxicating liquor, second offense. RSA 262:19 (supp); RSA 262-A:62 (supp). Cedergren v. Clarke, 99 N.H. 421. When greater penalties are prescribed for a second offense or a subsequent offense, they cannot be imposed without allegation and proof of a prior conviction. State v. Adams, 64 N.H. 440, 441. While there are several alternative methods of proving the previous conviction (State v. Blais, 104 N.H. 214) the burden is on the State to introduce evidence thereof as required by the statute. State v. Cardin, 102 N.H. 314. It is thus clear that the defendant could not be convicted for a second offense in this case. From this vantage point the defendant contends that he can be convicted of no offense and that the action of the trial judge constituted an amendment of the criminal complaint which was unlawful and unconstitutional.
Where there is no evidence to support the part of a criminal complaint which charged a second offense, it is proper to proceed with the trial of the defendant as for a first offense. In Commonwealth v. Barney, 258 Mass. 609, the defendant was charged with operating a motor vehicle on a public way "while under the influence of intoxicating liquor, said offense being a second offense." There was evidence sufficient to show a single offense but no evidence to establish the allegation of a second offense. The court there ruled that the jury were properly instructed to disregard the allegation of second offense as not supported by evidence and consider whether the defendant had committed a first offense. Such a procedure is not considered an amendment of the indictment or criminal complaint by the presiding justice. Salinger v. United States, 272 U.S. 542; 5 Wharton's Criminal Law and Procedure s. 2056; Vincent v. United States, 337 F.2d 891 (8th Cir. 1964); Overstreet v. United States, 321 F.2d 459 (5th Cir. 1963).
Defendant's exceptions overruled; remanded.
BLANDIN, J., did not sit; the others concurred.