People v. Gowasky

• Decision Date: 23 February 1927
• Citation: 244 N.Y. 451,155 N.E. 737
• Parties: PEOPLE v. GOWASKY et al.
• Court: New York Court of Appeals Court of Appeals

244 N.Y. 451

155 N.E. 737

PEOPLE

v.GOWASKY et al.

Court of Appeals of New York.

Feb. 23, 1927.

Joseph Gowasky and Theodore Hemerlien pleaded guilty of attempted burglary in the third degree, and from a judgment of the Appellate Division (219 App. Div. 19, 219 N. Y. S. 373), affirming a judgment of the Court of General Sessions sentencing them to life imprisonment as fourth offenders, they appeal.

Affirmed.

Lehman, J., dissenting.Appeal from Supreme Court, Appellate Division, First Department.

James Marshall, of New York City, for appellant Hemerlien.

Samuel Backlar, of New York City, for appellant Gowasky.

Joab H. Banton, Dist. Atty., of New York City (Robert C. Taylor, Asst. Dist. Atty., of New York City, of counsel), for the People.

CRANE, J.

When People v. Sickles, 156 N. Y. 541, 51 N. E. 288, was argued in this court, counsel for the appellant claimed that it was very unfair and prejudicial to the defendant for the people to prove his previous bad character and his conviction of other crimes before he had been found guilty of the crime for which he was being tried. There was some merit in the claim that it was no proof that the defendant had committedthe act charged, because some time in his past life he had been guilty of other offenses. This court, however, held in that case, following the earlier decisions, that the people must not only allege in the indictment the previous convictions, but must also prove them on the trial, in order to convict the defendant as a second offender. This was due to our statutory provisions and the practice which had grown up under them. In the opinion, this court called attention to the change which had been made in the English practice in this particular, saying:

‘Under the present English practice, as changed by an act passed in 1837, the principal charge must be first passed upon by the jury and then the proof is to be presented of the former conviction. That may be fairer procedure from the prisoner's standpoint; but, as Chief Judge Church observed, in Johnson v. People in adverting to the English practice, ‘we have no such statute.’ In the absence of legislation, effecting a change in the Code of Criminal Procedure, there is no warrant for departing from its requirements. The very fact, that in England it was necessary to enact a statute to remedy what was probably deemed a defect in criminal procedure at the common law, tends to show that, until legislation has changed the rule, it is essential that the prior conviction be proved by the people as a part of the case against the prisoner.'

The English practice referred to first found embodiment in the statute of 5 and 6 William IV, c. 111, as stated in Regina v. Shrimpton (3 Car. & Kir. Rep. 373). Thereafter, previous convictions could not be proved before the jury until after the new charge had first been disposed of. The previous practice of proving old offenses on the trial of the new charge was thought likely to prejudice the prisoner. See, also, Regina v. Shuttleworth, 3 Car. & Kir. Rep. 375.

The statute of 24 Victoria, c. 96, § 116 (year 1861) provided, in substance, that in any indictment for an offense committed after a previous conviction of a felony it should be sufficient after charging the subsequent offense to state that the offender was at a certain time and place convicted of a felony without otherwise describing the previous felony. The act then provided:

‘The offender shall, in the first instance, be arraigned upon so much only of the indictment as charges the subsequent offense, and if he plead not guilty, or if the court order a plea of not guilty to be entered on his behalf, the jury shall be charged in the first instance, to inquire concerning such subsequent offense only; and if they find him guilty, or if on arraignment he plead guilty, he shall then, and not before, be asked whether he had been previously convicted as alleged in the indictment,’ etc.

In this country the matter had been viewed from another angle. No one ever doubted the wisdom or justice of punishing a second or third offender more severely than a first offender. Many times it was difficult to find out who the prisoner was, and whether he had been previously convicted of crime. Frequently, he assumed a false name, and posed as a first offender when in reality he had been in prison many times before. This situation was met very early in Massachusetts in the Laws of 1817 and 1818, c. 176, p. 602, which provided increased punishment for second and third offenders. Stating that, whereas at the time of the indictment and trial of the person charged with crime it may not be known to the grand jury or the attorney for the commonwealth whether the person so charged had been before convicted or not, the statute provided:

‘That whenever it shall appear to the warden of the state prison, * * * that any convict, received into the same, pursuant to the sentence of any court, shall have before been sentenced, by competent authority of this or any other state, to confinement ot hard labor for term of life or years, it shall be the duty of the said warden, * * * to make representation thereof, as soon as may be, to the attorney or solicitor general; and they or either of them shall, by information, or other legal process, cause the same to be made known to the Justices of the Supreme Judicial Court, * * * and the said Justices shall cause the person or persons, so informed against, to be brought before them, in order, that if he deny the fact of a former conviction, it may be tried according to law, whether the charge contained in such information be true. And if it appear by the confession of the party, by verdict of the jury, or otherwise, according to law, that said information is true, the court shall forthwith proceed to award against such convict, the residue of the punishment provided in the foregoing section; otherwise the said convict shall be remanded to prison, there to be held on his former sentence.’

Under this statute a prisoner previously convicted was brought before the court on an information filed by the warden of his jail, and given an additional or increased sentence; it having been ascertained that he was an old offender. Ross Case, 2 Pick. (Mass.) 165, year 1824.

In Graham v. West Virginia, 224 U. S. 616, 32 S. Ct. 583, 56 L. Ed. 917, the Code of West Virginia was before the court which embodied the substance of the Massachusetts statute. It was there said that the statutes were derived from the laws which were in force in Virginia before West Virginia was created, and formed part of the Code of Virginia of 1860, c. 199, which in turn had been taken from the Code of 1849, c. 199. The West Virginia Code, c. 152, §§ 23 and 24, provided an additional sentence of five years for a prisoner previously sentenced to the penitentiary, and a life imprisonment if twice before sentenced to such imprisonment. The Code (chapter 165, §§ 2-5) then provided, following the Massachusetts statute, as follows:

‘2. When a prisoner convicted of an offense, and sentenced to confinement therefor in the penitentiary, is received therein, if he was before sentenced to a like punishment, and the record of his conviction does not show that he has been sentenced under the twenty-third or twenty-fourth section of chapter one hundred and fifty-two, the superintendent of the penitentiary shall give information thereof, without delay, to the said circuit court of the county of Marshall, whether it be alleged or not in the indictment on which he was so convicted, that he had been before sentenced to a like punishment.

‘3. The said court shall cause the convict to be brought before it, and upon an information filed, setting forth the several records of conviction, and alleging the identity of the prisoner with the person named in each, shall require the convict named to say whether he is the same person or not.

‘4. If he say he is not, or remain silent, his plea, or the fact of his silence, shall be entered of record, and a jury shall be impaneled to inquire whether the convict is the same person mentioned in the several records.

‘5. If the jury find that he is not the same person, he shall be remanded to the penitentiary; but if they find that he is the same person, or if he acknowledge in open court, after being duly cautioned, that he is the same person, the court shall sentence him to such further confinement as is prescribed by chapter one hundred and fifty-two, on a second or third conviction, as the case may be.’

The United States Supreme Court held this Code to be constitutional.

[1] These laws and decisions of other states I have referred to and quoted in order to show that the action of the state of New York in adopting chapter 457 of the Laws of 1926, amending sections 1941, 1942, and 1943 of the Penal Law, commonly known as the ‘Baumes Act,’ was nothing new. The practice was a century old. Either out of fairness to the prisoner, or else for public safety, the method of charging a prisoner after conviction, not before, with having been previously convicted of crime, and sentencing him accordingly, was well-known to the law.

This court, in People v. Rosen (208 N. Y. 169, 101 N. E. 855, decided 1913), again held, following the Sickles Case, supra, that, in order to convict a prisoner as a second offender and give him increased punishment, it was necessary to allege his previous convictions in the indictment, and to prove them on the trial. Now we have changed all this and adopted the other practice. Previous convictions need not be alleged in the indictment, nor proved upon the trial of the new charge. This, to me, seems eminently fair to any prisoner. When he is charged and tried for a crime, his previous record may not be used to influence the jury to convict him of that crime. The proof against him is to be the same as if he were a first offender, unless possibly he takes the stand. But, when he is convicted, then comes the...