50 N.Y.S. 377 | N.Y. App. Div. | 1898
Lead Opinion
The appellant was indicted for the crime of robbery in the first degree, charged as a second offense. (Penal Code, § 688.) On arraignment he pleaded not guilty. When the trial of the indictment was moved, and before the jury was impanelled, the defendant admitted his former conviction, and sought to have evidence of such conviction excluded from the jury. This application was denied, and on the trial the first conviction was proved and the defendant convicted as charged in the indictment; thereupon he was sentenced to imprisonment for the term of twenty-one years. The sole question raised on this appeal is the admissibility of the evidence of the first conviction after the concession or admission made by the defendant before the trial...
That it is necessary that the indictment should charge the first conviction is settled by authority, and the question is not open to
' The appellant, however, goes further, and claims that any provision of law which authorizes the People to prove a former offense, and to this extent prejudice the presumption of-innocence to which he is entitled, is not due process of law, and, therefore, unconstitutional. On this question, also, we are concluded by authority. In Johnson v. People (supra) it was argued that it was error to receive: evidence of the commission of the former offense, and thus show the: prisoner’s bad character before he had put his character in issue.. The objection was held untenable. It was there said by Church, Oh. J.: “ A more severe penalty is denounced by the statute for a-second offense ; and all the facts to bring the case within the statute must be established on the trial. The objection that the evidence may affect the prisoner’s character has no force when such evidence relates to the issue to be tried. Such evidence may be-prejudicial to a prisoner as to the second offense, and a case might occur of a conviction upon too slight evidence, through the influence-which a previous conviction of a similar offense might exert upon the minds of the jury ; but there is no legal presumption that such a. result will ever be produced. An English statute, passed in 1837, requires the principal charge to be first found by the jury, and then, authorizes proof, of the former conviction to be presented to them but we have no such statute.”
Though the point that the statute was unconstitutional is not directly discussed in the opinion, it is necessarily involved in the decision of the court. As the question is thus settled by authority,
The authorities cited from other States are not in opposition to this view. In State v. Freeman (27 Vt. 523) defendant 'was convicted of selling liquor under a statute which provided that the punishment should be increased if the defendant had been convicted of former offenses. Proof of former conviction could, by the statute, Be made at any time before sentence. The validity of this legislation was upheld by the court on the ground that the offense was not a crime, but a mere violation of police- regulation which the statute could have authorized the justice to determine summarily, without the intervention of a jury at all. The same principle was held in State v. Haynes (35 Vt. 570). But in State v. Spaulding (61 id. 505), the statute having been, changed, it was held to be necessary to prove conviction of the former offense before the jury. In
The English practice, under the first statute enacted of this characterj was to charge in the indictment and prove on the trial the prior conviction. (Rex v. Jones, 6 Car. & P. 391.) This practice was altered by statute so that on a plea of not guilty the jury first inquires into the subsequent offense, but if convicted of that offense then the prior conviction is submitted to and determined by the jury. The fact that, despite the change in procedure, the prior conviction is still to be found by 'the jury, would seem strong, evidence that the jurists of that country were of opinion that such prior conviction constituted an integral part of the offense.
If the first offense is an. ingredient of the crime charged, it must be submitted to the júry when the defendant pleads not guilty. We think it would bé well if our criminal procedure were changed so as to accord with the English practice, and suffer or permit the defendant to sever his plea, alio wing, him to confess his former conviction while denying the recent offense. Such change, however, must proceed from the-Legislature. As long as the law stands in
The judgment should be affirmed.
All concurred,- except Goodrich, P. J., and Woodward, J., dissenting.
Dissenting Opinion
The appellant was indicted for the crime of robbery in the first degree, charged as a second offense. On the arraignment he pleaded not guilty. When the trial of the indictment was moved, and before the jury was impanelled, the defendant admitted his former conviction and sought to have evidence of such conviction excluded from the jury. This application was denied, and on the trial the first conviction was proved and the defendant convicted as charged-in the indictment; thereupon he was sentenced to imprisonment for the term of twenty-one years. The sole question raised on this appeal is the admissibility of the evidence of the first conviction after the concession or admission made by the defendant before the trial.'
' It was decided in the case of Wood v. The People (53 N. Y. 511) that it was necessary to charge in the indictment the fact of a previous conviction “An essential ingredient of the aggravated
“A .person who, after having been convicted within this State of a felony, or an attempt to commit a felony, or of petty larceny, or, under the laws of any State, government or country, of a crime which, if committed within this State, would be a felony, commits ' a.ny crime within this State, is jpu/nis háble tvpon conviction of such second offense as follows: !
“ 1. If the subsequent crime is- such that, upon a first conviction, the. ■offender might be punished, in the discretion of the court, by imprisonment for life, he must be sentenced to imprisonment in. a State-prison for life;;
*477 “ 2.- If the subsequent Crime is such that, upon a first conviction, the offender would be punishable by imprisonment for any term less than his natural life, then such person must be sentenced to imprisonment for a term not less than the longest term, nor more than twice the longest term prescribed upon a first conviction.”
The essential error, as it seems to me, is in assuming that there is such a crime as robbery as a second offense. The chapter of the Penal Code devoted to robbery makes no mention of such an offense; it describes in detail what constitutes the crime in its various degrees, and names the punishments which shall be inflicted. Section 688 describes no such offense as robbery as a second offense, but it declares that a person who has been convicted of a felony or other crime “ is punishable upon conviction ” of a second offense by a more severe penalty than would be necessary for a first offense. The language is that “ a person who, after having been convicted within this State of a felony, .* * * commits any crime within this State, is punishable up.on conviction of such second offense.” He is •not to be convicted of the crime of robbery as a second offense, but of- “ such second offense,” which is the crime for which he is apprehended and tried. That is, once having been -convicted of a crime, if a person again “ commits any crime within this State ” he is, upon 'conviction of this last offense, to be punished more severely than in the case of a first offense. He is to receive no punishment for the first offense ; that would be to place him twice in jeopardy for the same offense. But it being apparent to the law that his first punishment has failed to work that reformation which it is the policy of the law to promote, the discretionary power of the court is modified by the rule laid down in section 688 of the the Penal Code in respect to those who have been convicted of “ such second offense.” This is the proceeding prescribed by the Code in respect to habitual criminals.. Section 690 provides that “ where a person is hereafter convicted of a felony, who has been, before that conviction, convicted in this State of any other crime, or where a person is hereafter convicted of a misdemeanor who has been already five times convicted in this State of a misdemeanor, he may be adjudged by the court, in addition to any other punishment inflicted upon him, to be an habitual criminal.” (People v. McCarthy, 45 How. Pr. 97.) The duty .of determining this question, which is not more serious than
Assuming, however, that it was the intention of the Legislature that there should be a trial of the fact before the' jury, have the People intrusted it with this power % Section 389 of the Code of Criminal Procedure provides that “ a defendant in a criminal action is presumed to be innocent until the contrary is proved, and in ease of a reasonable doubt whether his guilt is satisfactorily shown, he is entitled to an acquittal.” This presumption of innocence extends, not' alone to the crime with which he is charged, but to all other crimes; he is presumed to be free from all criminal taint, and the defendant not raising the issue by the introduction of affirmative evidence in-his own behalf, the court has'no right to allow any fact to go to the jury which disturbs this presumption, which is not germane to the crime with which he is charged.'
The 1st section of the 1st article. of the Constitution of this State provides that “ no member of this State shall be disfranchised or deprived qf any of the rights or privileges secured to any citizen thereof, unless by the law of the land or the judgment of his peers; ” •and it was- held in the case of Taylor v. Porter (4 Hill, 140) that “ the meaning of -the section then seems tó be that no member of the State shall be disfranchised, or deprived of any of his rights or privileges, unless the matter shall be adjudged against him upon trial had according to the course. of the common law. It must be ascertained judicially that he has forfeited his privileges, or that some one else has a superior title to the property he possesses, before -either of them can be taken from him. It cannot be done by mere legislation.”
In a like vein is the' language of Kent in his Commentaries (Vol. 2, p. 13), where he says that “it may be received as a proposition, universally understood and acknowledged throughout this country, that no person can be taken or. imprisoned, or disseised of his freehold or estate, or exiled or condemned, or deprived- of life,
One of the rights and privileges secured to “ any citizen ” of this State is that presumption of innocence guaranteed by section 389 of the Code of Criminal Procedure, and which goes to the extent of a presumption of innocence of all crime; and this presumption cannot be said to exist, nor can the defendant be assured of a fair and impartial trial, if he is compelled to confront his accusers upon a second charge with the fact of his previous offense in evidence before the jury, and we are of the opinion that the Legislature has no power to pass an act destroying this presumption; that the fact of a previous ■ conviction can have no place in the records or proceedings of the court until after it has been determined that there • has in fact been a crime committed by the person charged with such crime. It then becomes a legitimate inquiry ■ in determining the duty of the court in pronouncing sentence, and, in the absence of a controversy as to the identity of the defendant, there would seem to be no objection to the court taking judicial notice of the records of previous conviction, the same as in the case of an habitual criminal. However this may be, there can be no reasonable doubt of the fact that the defendant is entitled to all of the presumptions upon a trial for a second offense that belong to any citizen upon trial for a first offense, and as the statute provides that section 688 shall become operative only “ upon conviction of such second offense ” there can be no justification for establishing the fact of a previous conviction before the jury until after it has been determined that the second offense has in fact been committed by the person on trial. The Legislature would have no power to pass an act which would be valid which provided for such a proceeding.
This conclusion is not disturbed by the reasoning of the court in the case of Johnson v. People (55 N. Y. 512), because the constitutional question was not under consideration, and the court distinctly say that “ the former conviction and discharge must be alleged in the indictment, and, upon issue joined, must be proved on the trial
In the case of People v. Clements (42 Hun, 353) the court say that “ ‘ It was error to charge. the jury that, in any case, evidence of good character would be of no avail. There is no case in which the jury may not, in the exercise of sound judgment, give a prisoner the benefit of a previous good character. Ho matter how conclusive the other testimony may appear- to be, the character of the accused may be such as to create a doubt in the minds of the jury, and lead them to believe, in view of the improbabilities, that a person of such character would be guilty of the offense charged ; that the other evidence in the case is false, or the witnesses mistaken.’ ” The language used above is from the opinion of the court in the case of Remsen v. The People (43 N. Y. 6), and is quoted with approval in- the case cited.
The same case is again relied upon in support of the conclusion of the court in the case of People v. Wileman (44 Hun, 187) where the decision of the trial court was reversed because of the charge to the jury, which declared that “' when the evidence in the case satisfies the jury that the crime has been committed, and that the accused has committed the crime, then the evidence of good character is of no avail.’ ”
In the case of Stover v. The People (56 N. Y. 315) the case was again cited with approval, the court saying: “ Good character of the accused is to be considered by the jury upon the question of the credibility of direct evidence of. his guilt, the same as .upon proof of circumstances tending to show it, or the inferences to be drawn from such circumstances.”
If good character is' so important, if it may raise doubts in the
In the case of The People v. Raymond (96 N. Y. 39), Judge-Finch, in delivering the opinion of the court, says that the “ first offense was not. an element of or included in the second, and so subjected to added punishment, but is simply a .fact in the past his-' iory of the criminal, which the law takes into consideration when prescribing, punishment for the second offense. . That only is punished.” If this is the true construction of the statute, and it is the only one which does not come- into conflict; with that provision of; the. .Constitution which forbids that a person shall be put twice iff jeopardy for the same offense, then it can have no 'proper.place riff an indictment nor in the evidence which is to go before the' jury, unless the prisoner chooses to open the way to its admission by offering evidence of previous good character. The previous conviction is merely a. fact in the history of the prisoner; it is not a crime, nor doesit constitute any part of the crime with which lie-stands charged; it is merely the record of the judgment in a trialj with the merits ' of Which the 'jury in the case at bar cannot deal,;áúd as such it has' ho more place "in the records of the trial of a subsequent .crime than any other fact in the history of the prisoner which is. not-connected-with, the offense for which he is on trial. . r‘. '
This is analogous to our statute in reference to second offenses; it creates no new offense, but merely makes a “ distinction, with a view to a difference in punishment,” between those who have been convicted a second time and those who have only been convicted of a first offense, and it is not only unnecessary to make a special count in the indictment alleging such second offense, but it is entirely out of place in the proceeding. While dealing with New Jersey, it is . proper to note that, in the case of Clark v. State (4 Cent. Rep. 806), the Court of Errors, delivering its opinion through Judge Beed, say: “ Tlie rule of evidence upon which this assignment is founded is entirely settled. As a general rule, the State, for the purpose of showing that the defendant would be likely to commit the crime charged, cannot prove that he committed other crimes, although of a like nature.” This is unquestionably the rule in this State so far as it relates to crimes of which the defendant has not been convicted, and this brings us back to the question, Has the Legislature the power, under the Constitution, to enact a statute which denies to.one citizen the rights and privileges secured to another? Has it
“ Considerable difficulty formerly existed as to the course to be pursued under this statute. A prejudice was created in the minds of the jurors by a knowledge of the previous conviction, and yet in strictness that circumstance could not be withheld from their knowledge. To remedy this, the stat. 6 and 7 William 4, c. 111, was passed, and now the prisoner must be arraigned, and the jury must be charged and the evidence proceed, as if the indictment did not contain the averment of a previous conviction, and this allegation must not be" opened to the jury, or their verdict taken upon it, until after they have found the prisoner guilty of the subsequent felony, and then the prosecutor must prove the previous conviction and identity of the defendant, and upon, this, likewise, the jury must deliver'their verdict. If, however, the defendant call witnesses to character (or if, by the cross-examination of the witnesses for the prosecution, evidence to character be elicited [Reg. v. Gadbury, 8 C. & P. 676]), the previous conviction may be proved in .reply, and the compound question will, in that case, be left to the jury in the first instance.” .
The Penal Code has been adopted in comparatively recent years, and, it may be assumed, with a knowledge of the practice in England; and .if we read section 688 with this practice in view, we shall see that, there is nothing in our statute inconsistent with the statute law
But there is a legislative provision which fully, meets the requirements of this case. Section 483 of the Code of Criminal Procedure reads as follows: “ After a plea or verdict of guilty, in a case' where a discretion is conferred upon the court as to the extent of the punishment, the court, upon the suggestion of either party, that there are circumstances which may be' properly taken into view, either in aggravation or mitigation of the punishment, may, in its discretion, hear the same summarily at a specified time, and upon such notice to the adverse party as it may direct.”
The court has a discretion in naming the punishment for a second offense, the latitude given being between-the maximum sentence for . the first offense and twice that term for the second, where the punishment is less than for life, and it requires no great stretch of the use of language to say that it has a discretion in all of the matters mentioned in section 688, as that section becomes operative only upon conviction of the second offense,; and if this reasoning is correct, the only way consistent with the Constitution which has been provided by the Legislature of the State for determining whether it is in fact a second offense, is by such a process as is authorized in ' the section quoted above.
“ Statutes enlarging or conferring personal rights,” says Secretary Fish, in his instructions to Mr. Davis (Whart. Inter. Law. Dig. § 174), “ are to be construed liberally, in contradistinction to' those which abridge or take away such rights,” and this rule is none the less applicable to constitutional provisions intended to preserve those right's. If we apply this rule to section. 1, article I, as related to this question, there can be no doubt that the trial court was in error in admitting to the jury the evidence of a previous conviction ; it
The judgment of the court below should be reversed, 'and the defendant should be given a new trial.
Goodrich, P. J., concurred.
Judgment of conviction affirmed.
Concurrence Opinion
While I should think it fairer to the accused person not to permit proof of a prior conviction of a prior ofíense until there had been a. determination in respect to the offense presently on trial, I concur with Hr. Justice Culler in the view that the question involved in the present appeal is practically settled by authority. I'also agree-with him that it does not necessarily follow that proof that the defendant has committed a prior offense will bias and prejudice the jury in determining whether he has committed a second. But the-word necessarily is of great importance in this proposition. That such proof has a strong tendency to prevent an impartial determination in respect to the second accusation I have no doubt.
