55 N.Y. 512, Johnson v. State

Citation:55 N.Y. 512
Party Name:CHARLES JOHNSON, Plaintiff in Error, v. THE PEOPLE OF THE STATE OF NEW YORK, Defendants in Error.
Case Date:January 27, 1874
Court:New York Court of Appeals

Page 512

55 N.Y. 512

CHARLES JOHNSON, Plaintiff in Error,



New York Court of Appeal

January 27, 1874

Submitted Jan. 19, 1874.

Page 513


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.)


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.

Page 514

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. 1 (2 Car. R., 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...

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