A former conviction for illegally keeping lager beer for sale does not constitute part of the same subsequent offence, and need not be alleged to have occurred within the limit of one year before the indictment for the subsequent offence.
SMITH, J.
The keeping of lager beer for sale by a person not an agent for the purpose of selling spirituous liquors is punishable by a fine of ten dollars, and for any subsequent offence, by a fine of fifty dollars. G. L., c. 109, s. 15. No indictment for the violation of this statute can be found, unless the offence was committed within one year before the first day of the court at which it is prosecuted. G. L., c. 109, s. 36.
The indictment, in this case, found at the October trial term, 1887, charges the respondent with the illegal keeping for sale of lager beer, April 27, 1887, and alleges a former conviction of a like offence July 5, 1882, in the police court of the city of Concord, upon a complaint to which he pleaded guilty. The motion to quash is put upon the ground that neither the first offence nor his conviction thereof was within one year before the first day of the term when this indictment was found. If this is a good reason for quashing the indictment, it must be because the first offence is a part of that charged. But no part of the offence charged in this indictment was committed in 1882. The keeping for sale in that year, and the alleged keeping for sale in 1887, are separate and complete acts, and separate offences. If the allegation of a former conviction should be stricken out, the change would not render the offence charged less complete. It is true the heavier sentence for a subsequent offence cannot be imposed in the absence of an allegation and proof of a prior conviction. In some sense, therefore, the additional punishment may be said to be a consequence of the first conviction, but it is not a necessary consequence. It can only arise on a second conviction, and the offender being apprised of it in advance, is left free to brave or avoid it. Rand v. Commonwealth, 9 Gratt. 743. Lord Campbell, in Reg. v. Clark, Dears. 198, observed, — "A statement of a previous conviction does not charge an offence. It is only the averment of a fact which may affect the punishment. The jury do not find the person guilty of the previous offence; they only find that he was previously convicted of it, as an historical fact."
The statute merely makes a distinction in the punishment inflicted for a first and subsequent conviction. The offence is the same in either case. The offender is not subjected to increased punishment for the first violation, nor is he a second time put in jeopardy for it. The heavier punishment is for persisting in wrong by repeating the offence. People v. Stanley, 47 Cal. 113; Rand v. Commonwealth, 9 Gratt. 743; Ross's Case, 2 Pick. 165; Plumbly v. Commonwealth, 2 Met. 413; 1 Bish. C. L. (6th ed.) s. 965. The punishment is more severe because of the character of the offender; because the discipline of his former punishment has failed to enforce his obedience to the law which he had previously violated; and because the reforming influence of the previous sentence has been tried in vain. The statute does not punish him anew for the prior offence, but to compel obedience by imposing a severer penalty when the milder sentence has failed in that respect. Commonwealth v. Mott, 21 Pick. 492; Bump v. Commonwealth, 8 Met. 533; Phillips v. Commonwealth, 3 Met. 588; 1 Bish. C. L. (6th ed.) ss. 959-965. Even a pardon of the first does not prevent the infliction of the heavier punishment on the second or subsequent offence. Mount v. Commonwealth, 2 Duvall (Ky.) 93.
It is objected that the offence charged in the second count is not "fully and plainly, substantially and formally, described" to the respondent as required by Art. 15 of the New Hampshire Bill of Rights. The provision of s. 23, c. 109, Gen. Laws, that it shall not be requisite to set forth particularly the record of a former conviction, but that it shall be sufficient to allege briefly that the person complained against has been convicted of some violation of said chapter, is to be so construed as to give full effect to the constitutional protection. The former conviction being a part of the description and character of the offence intended to be punished, because of the higher penalty imposed, it must be alleged; and we think it is sufficiently described when, as in this case, the court, time, offence, and fact of conviction on a plea of guilty are set forth. The respondent cannot fail to understand from the indictment that he is charged with an offence aggravated by its repetitious character, and he is informed where the record of his former conviction may be found. He is not left in doubt what the evidence upon that part of the case will be. The prior conviction can be proved only by the record. Commonwealth v. Holley, 3 Gray 458, 459. The record is conclusive. None of the facts recited in it are open to be controverted. As the offence charged is shown to be a second one by the record and proof of personal identity, the facts constituting the former offence need not be alleged in this indictment. The jury do not inquire whether he was guilty of the offence charged in the former indictment, but whether he is the person who was convicted.
This question is not, perhaps, now open to the respondent, it not having been raised at the trial. So far as appears, the evidence of former conviction was received without objection, but as it has been argued we have considered it.
Exceptions overruled.
ALLEN, J., did not sit: the others concurred.
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