Stevens v. People — 1 Hill & Den. 261

Majority

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Stevens vs. The People.

Headnote

Itis no objection to the validity of a record of conviction by the general sessions, that the judge who signed it was not such when the conviction took place, but received his appointment afterwards.

An indictment for petit larceny, charging it as a second offence, is good, though, in respect to the first offence, it merely alleges that the defendant was convicted, &c., without averring in terms a. judgment or sentence, and'though it does not specify the property to which the first offence related, or the person from whom it was stolen.

Otherwise, however, if the indictment omits to aver, that the defendant had been pardoned, or otherwise discharged from the first.conviction, before the commission of the second offence.

Error from the Schenectady general sessions. Stevens was indicted for petit larceny. The first count was for petit larceny simply. The second was for petit larceny, as a second of-fence : alleging, by way of showing the first offence, that at a former general sessions in the same county, Stevens was convicted of the crime of petit larceny, but giving no particulars.

On the trial, the public prosecutor procured a record of the former conviction, to be made up and signed by A. L. Linn, Esq. then a judge of said court; but because he was not so at the time of the former conviction, Stevens’ comisel objected to its being received in evidence. The objection was overruled, and the counsel for Stevens excepted.

The following objections, also raised at the trial, were now again insisted on: 1. That the second count in the present indictment, does not aver any judgment or sentence on the former conviction: 2. It does not show of what property Stevens was before convicted of stealing, nor the name of the owner, nor does it contain any description of the offence: 3. It does not show that Stevens had been pardoned or otherwise discharged from imprisonment under the first conviction, prior to the commission of the second offence.

These objections were all overruled at the trial, and Stevens’ counsel again excepted. The jury gave a general

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verdict of guilty, upon which judgment was rendered accordingly ; and the defendant sued out a writ of error.

A. C. Paige, for the plaintiff in error.

P. Potter, (district attorney,) for the people.

There' is nothing in the first objection. Judge Linn had authority to sign the record.

The second objection is also without foundation. The statute is, that every man having been convicted of petit larceny, and having been pardoned or otherwise discharged, who shall be subsequently convicted of petit larceny, &c. shall be punished in the state prison. ' This provision is collectable from 2 R. iS. 584, 2d ed. § 9. The word conviction is enough; for in this, the statute is pursued.

It is enough, for the same reason, to say, the prisoner was convicted of petit larceny, without giving particulars. The mere conviction of petit larceny, is the material fact. The third objection is therefore unfounded.

But there is another ingredient essential to the aggravated offence intended to be charged in the second count, which is not mentioned there. The statute requires not only a former conviction, but that the prisoner shall have been pardoned or discharged. It follows that either a pardon or discharge must he averred in the indictment. ( 1 Chit. Cr. Law, 280 , Am. ed. of 1836.)

It is said, that such cannot be the construction of the statute, as it would lead to this absurdity: the prisoner would not be subject to the aggravated punishment should he escape from prison and then steal, which is. thought a much more fit case for increasing the punishment than where he has been pardoned, or discharged in due course of law. That we might possibly say, were the words open to construction; but they are direct and plain. When a statute makes a pardon or discharge the condition of increased punishment, on what rule can we say it shall be increased without either ? We might, perhaps, in a civil case, give

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it an equitable extension, so as to cover circumstances exactly within its reason or principle; but not in a case of crime. Besides, if we had the power of construction, how can we say the legislature did not intend that the first punishment should take its regular and usual course, as a lesson of moral reformation, • before the offender should be deemed a fit subject for the enhanced penalty? (Vide 3 R. S. 834, 2d ed. Revisers’ note on § 9, there.)

On the fourth objection, therefore, we think the judgment must be reversed.

Judgment ‘reversed.