Charles Johnson, Plaintiff in Error, v. The People of the State of New York, Defendants in Error

Charles Johnson, Plaintiff in Error, v. The People of the State of New York, Defendants in Error. Upon the trial of an indictment charging larceny, after a former conviction for the same crime, all the facts necessary to bring the case within the statute (2 B. S., 699, § 8) imposing a more severe penalty for a second offence, must be proved upon the trial and passed upon by the jury. Proof of the former conviction is not incompetent, because it tends to prove bad character; and that by proof of specific acts; these objections have no force where the evidence relates to the issues to be tried.. Upon the trial of such an indictment no evidence was given of the discharge of the prisoner from imprisonment under the former conviction, either by pardon or expiration of sentence; the point was not raised upon the trial. Held, that it was not available upon, appeal. (Submitted January 19, 1874; decided January 27, 1874.) Error to thé General Term of the Supreme Court in the first judicial department, to review judgment affirming judgment of the Court of General Sessions of the Peace in and for the city and county of Hew York, convicting the plaintiff in error of the crime of grand larceny after a former conviction for the same offence. The facts appear sufficiently in the opinion. William F. Howe for the plaintiff in error. It was necessary to prove the time and manner of plaintiff’s discharge from imprisonment under his former conviction, and the indictment should aver it. (3 R. S., 984, § 8 ; 2 Russ. on Crimes, 129, 130; 2 Leach, 594; People v. Townsend, 3 Hill, 479 ; People v. Stevens, 1 id., 261; Palmer v. People, 6 id., 427; Wood v. People, Ct. Apps.; 3 Greenl. Ev., 10; 1 Arch. Crim. Ev., 118, et seq. [marg. page, 385].) It was error to receive evidence to show the prisoner’s bad character before he had put his character in issue. (People v. White, 14 Wend., 111; 2 Den., 351; 5 Cox’s Cr. Cas., 369, 387.) Benj. K. Phelps for the defendant in error.. Proof of the plaintiff’s former conviction was properly, admitted. (Arch. Crim. Pldgs., 960.) The sufficiency of the evidence of plaintiff’s discharge not having been questioned on the trial, this court has no power to review it. ( Wilkie v. People, MSS. of Ct. of Apps.) [MAJORITY — Church, Ch. J.] Church, Ch. J. The indictment, charges larceny, after a former conviction for the same crime. Proof of the former conviction was objected to on the trial, and is claimed to be incompetent upon the ground that it tended to establish bad character by proof of specific acts; which is improper, especially, before the prisoner puts his character in issue. The former conviction and discharge must be alleged in the indictment, and, upon issue joined, must be proved on the trial and passed upon by the jury. There is no other mode of proving the facts, and this has been the uniform practice in this State. A more severe penalty is denounced by the statute' for a second offence; and all the facts to bring the case within the statute must be established on the trial. (2 Car. B., 37.) 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 offence-, and a case might occur of a conviction upon too ' slight evidence, through the influence which a previous conviction of a similar offence 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. It is also objected that there was no evidence that the prisoner had been discharged or pardoned, as the statute requires, except by the fact that sufficient time had elapsed to enable the prisoner to serve out his sentence. This we held to be insufficient in the recent case of Woods v. The People *; but the point is not available because it was not taken on the trial. The attention of the court should have been called to the question, and, if decided adversely, an exception taken. If this had been done the prosecution might have supplied the proof. As no error in law was committed, the judgment must be affirmed. All concur. Judgment affirmed.