53 N.Y. 511, Wood v. People

Citation:53 N.Y. 511
Party Name:JOHN WOOD, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error.
Case Date:October 07, 1873
Court:New York Court of Appeals
 
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Page 511

53 N.Y. 511

JOHN WOOD, Plaintiff in Error,

v.

THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error.

New York Court of Appeal

October 7, 1873

Argued Sept. 24, 1873.

Page 512

COUNSEL

Wm. A. Beach for the plaintiff in error. Plaintiff in error was only liable, under the charge of a prior conviction, upon averment and proof of his discharge thereon in the ways provided by statute. (2 R. S., 679, § 73; Id., 699, § 8; Stevens v. People, 1 Hill, 261; People v. Gray, 25 Wend., 465; Fleming v. People, 27 N.Y. 329.) The accused had a right to demand a precise statement in the indictment of the facts constituting his alleged offence. (1 Bish. on Cr. Pro., § § 505, 625, 633, 635, 639, and note; People v. Allen, 5 Den., 76; 3 Greenl. Ev., § 10.) The court erred in receiving evidence of a former conviction. (Arch. Cr. Pldgs., 17th ed., 143, 307, 960.)

Benj. K. Phelps, district attorney, for defendants in error. The original minutes of the court, showing the former conviction, were competent, and the best evidence of the facts set forth in them. ( Rex v. Newman, Den. & P., 390; People v. Gray, 25 Wend., 468; Trial of Horne Tooke, 25th St. Trials, 447; Rex v. Perry, 7 C. & P., 836.) The pleading and proof as to the former conviction were in accordance with well settled practice here and in England. ( Rex v. Jones, 6 Car. & P., 39; People v. Butler, 3 Cow., 347; Tuttle v. Commonwealth, 2 Gray, 505; People v. Cook, 2 Park., 12;

Page 513

People v. Golden, 3 Id., 330; Hines v. The State, 26 Ga., 614; Brooks v. Com., 2 Rob. Va., 845; People v. Youngs, 1 Caines, 37; 1 Bish. Cr. L., 2d ed., § 961, et seq.)

ALLEN, J.

An essential ingredient of the aggravated offence charged upon the accused was that the alleged felony was committed after a former conviction of an offence punishable by imprisonment in a State prison, and a discharge "either upon being pardoned, or upon the expiration of his sentence, " upon such conviction. (2 R. S., 699, § 8.)

The discharge in one of the ways mentioned in the statute is a fact as material and as necessary to be alleged as was the prior conviction. Both enter into and make a part of the offence of which the accused was convicted. The indictment would have been defective, and no conviction could have been had for an offence subjecting the prisoner to the increased punishment imposed by statute upon those convicted of a felony after a prior conviction and a discharge, without an averment not only of a conviction, but of a discharge, either upon pardon or the expiration of the sentence. ( Stevens v. People, 1 Hill, 261.)

It is elementary that an indictment upon a statute must state all the facts and circumstances which constitute the statutory offence, so as to bring the...

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