State v. Dericho

Tolman, J. Appellant was charged by information, under §§ 5 and 32 of initiative measure No. 2, Laws of 1915, pp. 3 and 16 (Rem. Code, §§ 6262-5, 6262-32), with the offense of knowingly, willfully and unlawfully permitting intoxicating liquors to be kept on certain premises occupied by him, with intent to sell, barter, exchange, give away, or otherwise dispose of the same, and “He, said Pete Dericho, heretofore, to wit, on the 29th day of January, 1917, in the county of King, state of Washington, before Otis W. Brinker, justice of the peace residing and sitting in Seattle precinct, King county, Washington, has been convicted of the crime of selling intoxicating liquor, and sentenced to pay a fine of fifty dollars therefor, contrary to the statute," etc., etc. Prom the verdict of guilty and a judgment thereon, this appeal is prosecuted. The first error assigned is based upon the refusal of the trial court to strike from the information the allegation as to a previous conviction of the crime of selling intoxicating liquor; and it is argued that this charge had a tendency to overcome the presumption of good character, and of denying to appellant a fair and impartial trial, and prejudiced the jury against bim in the trial upon the specific offense charged in the information. A sufficient answer seems to be contained in § 32 of the act (Id., § 6262-32), which requires prosecuting attorneys having knowledge of a previous conviction under the act to allege such previous conviction in the information. No reason is suggested why this is not a proper police regulation to discourage [470] violations of the law; and, so far as we have discovered, similar provisions of other states have been upheld whenever their constitutionality has been questioned. State v. Findling, 123 Minn. 413, 144 N. W. 142, 49 L. R. A. (N. S.) 449, and cases there cited. Nor did the court err in instructing the jury to find whether or not appellant was formerly convicted, as a verdict finding a prior conviction is generally held essential to empower the court to impose the increased punishment provided by the act. State v. Findling, supra; People v. Dueber, 34 Cal. App. 686, 168 Pac. 578; People v. Franklin (Cal. App.), 171 Pac. 441; Evans v. State, 150 Ind. 651, 50 N. E. 820. The third contention, that the court erred in refusing to accept an incomplete verdict, and in sending the jury out a second time to find a verdict upon the issue as to a former conviction, is also without merit. “The rule is well settled that the court may, with proper instructions, recommit a verdict to the jury for their reconsideration, where the verdict which they have rendered is not in the proper form, where it is insufficient in substance, not responsive to or covering the issues or instructions, or is otherwise defective . . 38 Cyc. 1893, and cases there cited. And lastly, appellant complains because he was not permitted to go behind the record of the former conviction and introduce evidence to show that he was not guilty of the charge upon which that conviction was based. We know of no authority to sustain such a contention, and appellant cites none. Under familiar rules, the former judgment of conviction is conclusive and may not be impeached by collateral attack unless void; and there is no suggestion here that it is void or even voidable. The judgment appealed from is affirmed. Mitchell, Main, and Mackintosh, JJ., concur. Holcomb, O. J., took no part.