Meyers v. State , 193 Wis. 126 ( 1927 )

Vinje, C. J.

Defendant assigns as error proof of his former convictions after he had admitted them, relying upon the rule in Howard v. State, 139 Wis. 529, 121 N. W. 133. The State answers that it cannot be error to prove that which the' statute requires to be alleged and proved. Sub. (27) (b), sec. 165.01, Stats., provides: “The prosecuting attorney shall plead and prove previous convictions of the accused for any violation of this act.” Taken literally this requires proof, but proof of a fact is dispensed with when its existence is admitted. The law requires proof of guilt beyond a reasonable doubt to sustain a conviction in a criminal case, but a plea of guilty dispenses with all proof. So the admission of the existence of a fact dispenses with proof thereof. It is not probable that the legislature, by the use of the language “shall allege and prove,” intended to establish a rule contrary to that announced in Howard v. State, 139 Wis. 529, 121 N. W. 133. If former convictions are alleged and admitted, then they are proved within the meaning of the statute.

But under the facts in this case there was no error in receiving the testimony of the defendant admitting, or the record evidence proving, former convictions. He testified as to the merits, and the evidence was competent upon the question of his credibility, and the jury were expressly instructed that they could consider it for that purpose only. Besides, proof of his guilt was so strong that had the evidence been erroneously received we should have to hold in this case it was not prejudicial error.

It is claimed by the defendant that he should have been sentenced under sub. (32) (a), sec. 165.01, providing for punishing those who have been convicted of prior offenses against the state prohibition law, and not under sec. 359.14, the general repeater statute. Having been convicted unde<r the federal act upon a different state of facts and for a different offense, his claim is negatived by the decisions in the case of Barry v. State, 190 Wis. 613, 209 N. W. 598, holding that sub. (32) (a), sec. 165.01, applies only to prior violations of the state prohibition law, and does not include violations of other laws.

The terms “offense” and “violation” as used in these statutes unquestionably mean convictions of an offense. See Faull v. State, 178 Wis. 66, 71, 189 N. W. 274. We discover no reversible error in the record.

By the Court. — Judgment affirmed.