State v. Suick

Owen, J.

Sec. 165.01 of the Statutes of 1925 is known as the prohibition act. Sub. (32) thereof relates to penalties for violation of the act. After prescribing a penalty for a first offense it provides that “for a second or subsequent offense (the offender) shall be fined in addition to the costs of the action not less than two hundred dollars nor more than two thousand dollars, and be imprisoned in the county jail not less than one month, nor more than one year.” In Faull v. State, 178 Wis. 66, 189 N. W. 274, it was held that the term “offense” as used in this statute meant conviction, so that the aggravated penalty could not be imposed unless the defendant had been previously convicted of an offense against the prohibition act.

In this case the trial was before the court. The court made findings that on the 2d day of March, 1927, the defendant did have in his possession a certain quantity of privately manufactured distilled intoxicating liquor, and that on the llth day of March, 1924, in the said court, the defendant herein entered a plea of nolo contendere to the charge of having in his possession privately manufactured distilled intoxicating liquors, contrary to the statutes of the state of Wisconsin; that such plea was accepted by the court and judgment was entered by the court finding the defendant guilty and sentencing the defendant to pay a fine of $200 and costs, and in lieu of payment of fine to be committed to the county jail for sixty days; that the defendant paid the fine and costs and such finding remains of record and un-reversed.

It is contended by the defendant that this judgment does not amount to a prior conviction for the reason that it was based upon a plea of nolo contendere. The judgment is a solemn adjudication by a court of competent jurisdiction that the defendant was guilty of having in his possession privately manufactured distilled intoxicating liquor, contrary to the provisions of the statutes of the state of Wisconsin. This judgment is conclusive between the parties as to the facts therein adjudicated. The effect of this judgment between the parties depends in no manner upon the proceedings which led up to the rendition of the judgment. The force and effect of the judgment is just the same whether the defendant pleaded guilty, was found guilty by the verdict of a jury, or whether judgment followed a plea of nolo con-tendere. The force of a judgment in a collateral proceeding does not depend upon the nature of the proceedings resulting in the judgment. The plea of nolo contendere is an implied confession. Judgment of conviction follows such a plea as a matter of course, yet the plea itself contains no admissions which can be used against the defendant in another action. For this reason it is a plea favorable to the defendant. It is a plea which he may not interpose as a matter of right. It is received at the discretion of the court. It is a plea, however, from which a judgment of conviction follows as inevitably as such a judgment follows a plea of' guilty. While a plea of guilty amounts to an express admission of the defendant which may be used against him in another case, the plea of nolo contendere contains no admission which may be so used. There is no difference, however, in the nature, character, or force of the judgment following such pleas. They are both solemn adjudications of guilt, and we see no reason why judgment of conviction following a plea of nolo contendere does not constitute a prior conviction, or as conclusive evidence of a prior offense, as a judgment entered upon a plea of guilty or upon a verdict of a jury. Such is the holding in State v. Lang, 63 Me. 215; State v. Fagan, 64 N. H. 431, 432, 14 Atl. 727; State v. Conway, 20 R. I. 270, 38 Atl. 656. In State v. Conway, supra, the trial court admitted testimony relating to an indictment against the defendant which had been previously found and to which the defendant had entered a plea of nolo contendere. This plea, however, was followed by no judgment of conviction. While the court held, very properly, that this did not constitute a prior conviction, or evidence of the commission of a prior offense, we infer from the language used in the opinion that the court would have held a judgment of conviction following such plea admissible. We have been referred to no case holding that a judgment of conviction following a plea of nolo contendere is not admissible for the purpose of proving a prior conviction for the commission of a prior offense. Appellant’s argument is based principally upon the decisions of some courts holding that such a judgment is not admissible for the purpose of impeachment. There seems to be a difference of opinion upon this question. See note in 41 L. R. A. n. s. 70 et seq. Whatever reasons may support the conclusion that a judgment of conviction based upon a plea of nolo contendere should not be received for purposes of impeachment, we can accord them no weight in reaching a conclusion upon the question here presented.

By the Court. — Question No. 1 is answered No; question No. 2 is answered Yes.