96 N.Y. 38, People v. Raymond

Citation:96 N.Y. 38
Party Name:THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. STEPHEN RAYMOND, Appellant.
Case Date:April 29, 1884
Court:New York Court of Appeals
 
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96 N.Y. 38

THE PEOPLE OF THE STATE OF NEW YORK, Respondent,

v.

STEPHEN RAYMOND, Appellant.

New York Court of Appeal

April 29, 1884

Argued Apr. 21, 1884.

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COUNSEL

James Johnston for appellant. No offense can be considered a second offense under the Penal Code, unless it appears that the first offense charged was a crime under the Code. (Penal Code, § 719; Cooley's Constitutional Limitations [4th ed.], 324, 325 326.

John Vincent for respondent. Section 688 of the Penal Code is not ex post facto. ( People v. Wood, 53 N.Y. 511.) It was not necessary that the first offense should be a crime under the Penal Code. (Penal Code, § § 719, 727.)

FINCH, J.

Many of the objections taken to the conviction and sentence of the accused admit of brief answers. There was proof tending to show that the alleged altered coupon was in fact altered; enough at least to carry that question to the jury and sustain their verdict when rendered. That there was no evidence of an intent to defraud on the part of the prisoner is maintained on the ground that the railroad company could not be defrauded by the payment of their own coupon, although it had been stolen from the true owner. But the bonds and coupons were numbered and so could be identified, and the evidence warrants the inference that notice of the theft had been given, and a payment to the agent of the thief, induced by a forgery of the number, would expose the debtor to a second demand from the true owner. To the claim that the altered coupon was not put in evidence, the answer is that the fact is otherwise. It appears to have been attached to the indictment, was proved to have been one of the twelve in the prisoner's envelope, and was afterward made the subject of cross-examination by the prisoner's counsel. That no offense can be considered a second offense under the Penal Code unless it appears that the first offense charged is a crime under such Code by reason of section 719, and the first offense here was before the Code went into operation, is a contention without adequate foundation. 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 history of the criminal, which the

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law takes into consideration when prescribing punishment for the second offense. That only is punished.

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