People v. Cramer

5 Park. Cr. 171 | N.Y. Sup. Ct. | 1860

Knox, J.

On the third Monday of April, 1860, the defendant was indicted for violating the excise law. The indictment charged that the offenses were committed on the 10th of March, 1860, and on the 10th of April, 1860.

On the 10th of May, 1860, the defendant was convicted by a Court of Special Sessions of Livingston county, where the offenses alleged in the indictment were committed, of having violated the excise law, “ on the 16th day of April, 1857, and on the 1st day of April; 1860, and on divers other days between those times and the 9th of May aforesaid,” and was fined $5, which was paid.

On the 10th of May, 1860, at a Court of Sessions in said county, the indictment came on for trial, when the defendant pleaded, in bar of the indictment, this conviction before the Special Sessions, upon which issue was joined, when the jury, under the direction of the court, found the plea of the defendant not sufficient. The only evidence in support of the plea was the record of conviction of the-Court of Special Sessions. The court charges the jury that there was no legal evidence to show that the offenses mentioned in the record of conviction produced in "evidence were the same offenses set- forth in the indictment, and that the record was not a bar. Was this decision right ?

It is very obvious that the record of conviction does not show that the defendant was convicted of the same offenses, before the Special Sessions, of which he is charged in the indictment. The offenses in the indictment are alleged to have been committed on the 10th of March and 10th of April, 1860; and, although the record shows that the defendant was convicted of offenses of a similar character, committed on the 16th of April, 1857, and the 1st of April, 1860, and on divers other days between those times and the 9th of May, 1860, which time may cover the time set forth in the indictment, it does not show that they were the identical offenses charged in the indictment. A plea of “ autrefois convict" cannot be established without such proof. It is clearly possible for the defendant to have committed many violations of the excise law, during the period alleged in the record of conviction, which might not be the same violations charged in the indictment, and, therefore, if he was convicted of the same identical offenses, he should have proved the fact by evidence outside the record. (See 1 Park. Cr. R., 184, and cases there cited.)

The plea alleges that the defendant was lawfully convicted of the offenses charged in the indictment. As the plea admitted the commission of the offenses, the only question was, were they the same offenses ? As the record did not show that they were identical, it lay with the defendant to establish, by proof, aliunde, that such was the fact. This he did not do, or attempt to do.

The decision of the judge was correct, and the verdict fight.

Proceedings remitted.