An essential ingredient of the aggravated offence charged upon the accused was that the alleged felony was committed after a former conviction of an offence punishable by imprisonment in a State prison, and a discharge "either upon being pardoned, or upon the expiration of his sentence," upon such conviction. (2 R.S., 699, § 8.)
The discharge in one of the ways mentioned in the statute is a fact as material and as necessary to be alleged as was the prior conviction. Both enter into and make a part of the offence of which the accused was convicted. The indictment would have been defective, and no conviction could have been had for an offence subjecting the prisoner to the increased punishment imposed by statute upon those convicted of a felony after a prior conviction and a discharge, without an averment not only of a conviction, but of a discharge, either upon pardon or the expiration of the sentence. (Stevens v. People, 1 Hill, 261.)
It is elementary that an indictment upon a statute must state all the facts and circumstances which constitute the statutory offence, so as to bring the accused perfectly within the provisions of the statute. (People v. Allen, 5 Denio, 76; Wharton's Am. Cr. Law, § .) The indictment before us does not follow the statute. It merely avers, after a statement of the prior conviction, that the defendant had "been duly discharged and remitted of such judgment and conviction," and afterward committed the offence charged, but no objection was taken to its sufficiency. Whether the discharge was or was not sufficiently alleged, the prosecution was bound to prove every fact material and necessary to be averred and which constitutes a part of the statutory offence. If there was a failure to prove any fact, either the conviction or discharge, the conviction could only properly have been for the lesser offence of simple larceny. *Page 514 (Palmer v. People, 5 Hill, 427.) An informal or insufficient allegation of a material fact will not dispense with proof of every fact and circumstance essential and material to constitute the crime charged. Here there was no attempt to prove even the defective allegation of the indictment. When the statute describes the offence, the proof, as well as the allegations of the indictment, must bring the case within the statute. (Greenl. Ev., § 10.) The defendant should be brought within all the material words of the statute, as well by the proof as by the indictment. (2 Leach, 594; People v. Townsend, 3 Hill, 479; 1 Arch. Crim. Ev. [118, et seq., marginal pages], p. 385, Waterman's ed., and cases cited in notes.) This is true even when an offence consists wholly or partly of an omission or a negative. The proof required by statute was affirmative and not negative in its character. The fact and manner of discharge was not peculiarly within the knowledge of the accused, and the proof of it was as accessible to the prosecution as to the party charged with the offence. The accused cannot be called upon to disprove or negative a fact material to the offence, until the prosecution has given evidence tending to establish it.
There was no evidence of the time and manner of the discharge of the prisoner from imprisonment under his former conviction, or that he was ever imprisoned in the State prison pursuant to his sentence. Mere lapse of time did not authorize the presumption that he had been imprisoned and had been discharged upon the expiration of the term for which he was sentenced, so as to cast the burden of proof upon the defendant that he was not discharged either by pardon or upon the expiration of his sentence. He may have escaped, or the judgment may have been arrested or reversed, or he may have been discharged upon habeas corpus, and as there were other means and processes by which he might have been discharged, or found at liberty, it was error for the court to assume, in the absence of evidence, that he was discharged upon the expiration of the term of imprisonment, *Page 515 and therefore liable to conviction for the aggravated offence. In a criminal prosecution nothing is taken by intendment against the accused. The question was distinctly presented at the close of the trial, and the court was requested to instruct the jury that the prisoner should be acquitted of the aggravated offence for want of proof of his discharge from imprisonment either by pardon, or by the expiration of his term, and the request was refused. The learned judge evidently did not have the statute before him, and the request was not in the words of the statute, but the substantive objection was taken by counsel that the prosecution had not brought the case within the statute by proof of the discharge from the prior sentence, and distinctly overruled by the court.
Other objections, forcibly urged in this court by counsel, would, if they had been taken upon the trial and overruled, have deserved serious consideration; but, for the reason assigned, the judgment must be reversed and a new trial granted.
All concur, except FOLGER and ANDREWS, JJ., dissenting.
Judgment reversed.