People v. Sickles

• Decision Date: 04 October 1898
• Citation: 156 N.Y. 541,51 N.E. 288
• Parties: PEOPLE v. SICKLES.
• Court: New York Court of Appeals Court of Appeals

156 N.Y. 541

51 N.E. 288

PEOPLE

v.SICKLES.

Court of Appeals of New York.

Oct. 4, 1898.

Appeal from supreme court, appellate division, Second department.

Livingston Sickles was convicted of robbery in the first degree, as a second offense, and from a judgment of the appellate division (50 N. Y. Supp. 377), affirming the judgment of conviction, appeals. Affirmed.

Bartlett, J., dissenting.

Martin W. Littleton, for appellant.

Robert H. Elder, for the People.

GRAY, J.

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 commissionof 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 defendant guilty of the crime for which he is being tried. In the second place, it is argued that if such a construction be not given and such evidence is made admissible as part of the case against the prisoner, then certain rights secured to him by the constitution and laws of the state are invaded, in that he is deprived of his liberty without due process of law, and is not given the benefit of the presumption of innocence.

The first of these positions is taken upon the language of the section, which reads that ‘a person, who, after having been convicted within this state, of a felony, * * * commits any crime, within this state, is punishable upon conviction of such second offense, as follows,’ etc. It is argued that the words, ‘upon conviction of such second offense,’ warrant the view that it was not intended that the fact of the former conviction should be used by the prosecution until after the defendant has been found guilty of the offense for which he is being tried. The statute in question is not dealing with, nor regulating, criminal procedure, but is declaring the enhanced penalty which a subsequent offender against the laws of the state will incur upon conviction. When the people present a case under its provisions, the procedure to establish it is governed by the provisions of the Code of Criminal Procedure. The indictment of the person accused of being a second offender must bring the case within the statute by setting forth the facts depended upon for the imposition of the severer punishment prescribed by the Penal Code. People v. Powers, 6 N. Y. 50;Wood v. People, 53 N. Y. 511;Johnson v. People, 55 N. Y. 512. This is necessary in penal proceedings, in order that the defendant may be clearly informed of the charge which he is called upon to meet. The Code of Criminal Procedure requires it, and it is in accord with all just penal legislation. In such a case as this, the charge is not merely that the prisoner has committed the offense specifically described, but that, as a former convict, his second offense has subjected him to an enhanced penalty. In Wood v. People, supra, it was held that it was an essential ingredient of the aggravated offense, charged upon the accused, that the alleged felony was committed after a former conviction of an offense, and that the prior conviction entered into and made a part of the offense of which the accused was convicted. Judge Allen observed that, ‘when the statute describes the offense, the proof, as well as the allegations of the indictment, must bring the case within the statute. * * * The defendant should be brought within all the material words of the statute, as well by the proof as by the indictment.’ In Johnson v. People, supra, it was said that, as ‘a more severe penalty is denounced by the statute for a second offense, all the facts to bring the case within the statute must be established upon the trial.’ Section 388 of the Code of Criminal Procedure, in prescribing the order of procedure upon trial, provides that the prosecution ‘must open the case and offer the evidence in support of the indictment.’

The objection of the appellant is aimed at the procedure by which the people established the charge and made a case under the Penal Code, but the statute and the cases seem conclusive upon the question of the proof required of the prosecution. It is not easy to see how, in the absence of some statutory provision permitting it, the defendant can plead in part, and thus restrict the issue and the proof to be offered under the indictment. His admission of the former conviction, if made upon the trial, before the jury, may render evidence thereof unnecessary to be given; but whether it is made, or the fact is to be proved, the question for the jury to determine is whether the defendant is guilty of the present crime described in the indictment, and whether he is the person charged therein as having been formerly convicted. 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. Even with the change effected in the English criminal procedure, it would appear that the former conviction is regarded as an element entering into the grade of the guilt of the defendant, inasmuch as proof must be made of it and the jurors must deliver their verdict upon that proof. Reference is made to People v. Raymond, 96 N. Y. 38, by the appellant, where it was observed by Judge Finch that ‘the first offense was not an element of nor included in the second, * * * but is simply a fact in the past history of the criminal, which the law takes into consideration when prescribing punishment for the second offense.’ I do not think, however, that the learned judge's observation is to be taken in as broad a sense as the appellant claims for it. He was considering this contention: ‘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, and that the first offense was before the Code went into operation.’ He pronounced the contention to be without adequate foundation, and then makes the observation referred to. The present point was not being discussed. What he should be regarded as holding is that the second offense alone is to be punished, and that proof of the commission of the prior offense was not necessary to, and could not, establish the prisoner's guilt upon the principal charge. In a sense, the prior offense was not an element of the second offense, for they were disconnected acts; but the prior conviction so affected the grade of the prisoner's guilt and the degree of his liability to punishment that, in that sense, it entered into the offense of which he is convicted, and that I cannot regard Judge Finch's opinion as denying. His remarks have their proper significance, when read in connection with the case...