156 N.Y. 541, People v. Sickles

Citation:156 N.Y. 541
Case Date:October 04, 1898
Court:New York Court of Appeals

Page 541

156 N.Y. 541




New York Court of Appeal

October 4, 1898

Argued June 20, 1898.


Martin W. Littleton for appellant. The first offense and the first conviction constitute no part of, nor are they included in the second or subsequent offense. They are facts in the previous history of the accused, which are to be used by the court in fixing the penalty for the crime last charged, and the defendant has the right to admit these facts and be freed from the bias and prejudice they would create in the minds of the jury. (People v. Raymond, 96 N.Y. 38.) It is not now necessary or proper under the Code of Criminal

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Procedure to allege the facts of former conviction, confinement and discharge in the indictment. (Code Crim. Pro. §§ 254, 275, subds. 1, 2.) It was error for the court to allow the People to introduce any evidence of the former conviction, confinement and discharge of the defendant before the jury, after the defendant had admitted these facts to the court before the impaneling of the jury. (Penal Code, § 688; People v. Raymond, 96 N.Y. 38; Wharton on Crim. Law, § 3418; Bishop on Crim. Law, § 961; People v. Delaney, 49 Cal. 394; People v. Meyer, 73 Cal. 548; Thomas v. Commonwealth, 22 Grat. 912.)The evidence of previous conviction, confinement and discharge effectually destroys the 'presumption of innocence' to which the defendant is entitled under the Constitution and the Code, and deprives him of his liberty 'without due process of law.' (Code Crim. Pro. § 389; Wynehamer v. People, 13 N.Y. 447; Hoke v. Henderson, 4 Dev. [ N. C.] 1; Taylor v. Porter, 4 Hill, 140; Dartmouth College v. Woodward, 4 Wheat. 519.)

Robert H. Elder for respondent. Due process of law, in the states, is regulated by the law of the states. (Walker v. Sauvient, 92 U.S. 90; Kennard v. La., 92 U.S. 480; Davidson v. N. O., 96 U.S. 97-105; Hurtado v. California, 110 U.S. 516, 558; Leeper v. Texas, 139 U.S. 462.) Due process of law in the state of New York, by which a person can be deprived of his liberty for a felony, means that all the essential ingredients of an offense must be alleged in presentment or indictment by a grand jury and found by a common-law jury, before which the defendant must be allowed to appear and defend. (Const. of N.Y. art. 1, § § 2, 6; Cancemi v. People, 18 N.Y. 128; Stevens v. People, 1 Hill, 261; Wood v. People, 53 N.Y. 511; Johnson v. People, 55 N.Y. 512.) A fact is an essential ingredient of an offense, if, without the establishment thereof, in the prescribed way, the punishment designated cannot be pronounced. (Phelps v. People, 72 N.Y. 334, 355; State v. Thomas, 2 McCord, 527, 529.) The legislature has the power to make any fact an

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essential ingredient of an offense, so long as it violates no constitutional provision, national or state. (People v. Havnor, 149 N.Y. 195; People v. Price, 53 Hun, 185; 119 N.Y. 650; People v. Caesar, 1 Park. Cr. Rep. 648; R. R. Co. v. Husen, 95 U.S. 465, 470-472; The License Cases, 5 How. [ U. S.] 504, 599; Bowman v. C. & N.W. R. Co., 125 U.S. 465, 492.) The legislature has made the fact of former conviction an essential ingredient, since without it the increased punishment cannot be inflicted. (Johnson v. People, 55 N.Y. 512; People v. Raymond, 96 N.Y. 38; Tuttle v. Common., 2 Gray 505; Garvey v. Common., 8 Gray, 382; Penal Code, § § 231, 688; People v. Youngs, 1 Caines Rep. 37.) The rule of presumption of innocence is not a constitutional immunity. (Hurtado v. California, 110 U.S. 516, 558; Leeper v. Texas, 139 U.S. 462; Sheppard v. Steele, 43 N.Y. 52; Happy v. Mosher, 48 N.Y. 317.)


The defendant was indicted for the crime of robbery in the first degree, as a second offense, and, on being arraigned, entered a plea of not guilty. He was tried and found guilty by the verdict of a jury and, upon appeal, the judgment of conviction was affirmed by the Appellate Division. When the trial was moved, and before the jury was impaneled, the defendant admitted his former conviction and he, thereafter, sought to have evidence thereof excluded. His objection to such evidence was overruled and the exception taken to the ruling raises the question presented now for our review.

I think there was no error in the ruling. The prevailing opinion below, by Mr. Justice CULLEN, has very ably discussed the question involved and leaves little to be said. Indeed, the question may be regarded as practically settled upon the authority of certain decisions of this court.

The argument against the correctness of the ruling, in substance, is twofold. In the first place, it is argued that a correct construction of section 688 of the Penal Code, which provides for an increased penalty, where there is the commission

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of a crime after a previous conviction of the offender, only authorizes the introduction of the evidence of such former conviction after the jury has found the...

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