The defendant was indicted for the crime of burglary in the first degree, and upon being arraigned he pleaded guilty. Upon his plea, judgment could be pronounced only for the crime charged. Burglary in the first degree is punishable by imprisonment in a State prison “for pot less than ten years,” and may be for life. (Penal Law, §§ 401, 2191.) The punishment here inflicted was imprisonment in a State prison “for the term of thirty years, ” and in addition the defendant was “ adjudged an habitual criminal.”
. It is.claimed that the court was authorized, in addition to inflicting the other punishment, to. adjudge the defendant an habitual criminal under section 510 of the Code of Criminal Procedure, and section 1020 of the. Penal Law, since it appeared that defendant had previously been, convicted of grand larceny. There is no proof in the record of such previous-conviction; but in the brief presented by the learned district attorney a statement is made to the effect that defendant, in answer to certain questions put to him pursuant to the provisions of the statute (Code Grim. Proc. § 485a) admitted it, and there is a statement on the back of the indictment which reads .as f ollows: “Before convicted, 1908 General Sessions, Elmira Eef. G. L.”
But assmning that the defendant did, in answer to certain questions put to him after he had pleaded guilty to the crime charged in the indictment, admit that he had previously been convicted of a felony, such admission did not, in my opinion, authorize the court to adjudge him an habitual criminal or to impose any punishment other than that prescribed for burglary in the first degree. Where it is sought to impose an increased punishment upon a defendant by reason of previous conviction, it is essential that the prior conviction he charged in the indict*601ment and proved upon the trial. It is a necessary fact to he pleaded, since it constitutes a substantial part of the indictment. (Wood v. People, 53 N. Y. 511; Johnson v. People, 55 id. 512; People v. Sickles, 156 id. 541; People ex rel. Cosgriff v. Craig, 195 id. 193; People v. Bretton, 144 App. Div. 282.)
The defendant pleaded guilty to the crime charged in the indictment, and upon this plea judgment could only be imposed for the crime charged as and for a first offense. He could not for a first offense be adjudicated an habitual criminal. Such punishment could only be imposed when there had been a prior conviction. In People v. Sickles (supra) it was held that the prior conviction must not only be charged in the indictment, but proved before the jury on the trial. Judge Gray, who delivered the opinion of the court, said: “I regard it as a necessary and logical conclusion, where an increased punishment is prescribed by the statute upon conviction for a second offense, that the prior conviction enters as an ingredient into the criminality of the prisoner. Not that the fact of the prior conviction tends in anywise to prove the commission of the second offense, but that it aggravates the guilt of the prisoner, and as a hardened or unreformed criminal subjects him to an increased punishment for the repeated crime.”
People v. Bretton (supra) is exactly in point. There the defendant was indicted for the crime of grand larceny in the second degree as a second offense. On being arraigned he pleaded not guilty, but subsequently withdrew this plea and entered a plea of guilty of grand larceny as a first offense. When he was arraigned for sentence it appeared from his answers to questions put to him that he had previously been convicted and sentenced to a State prison, and he was thereupon sentenced to imprisonment for life. It was held that the sentence was not justified, he having pleaded guilty to a crime for which a lesser sentence was provided.
I am of the opinion that the sentence here, in so far as it adjudged the defendant an habitual criminal, was not justified. The judgment, however, may be corrected. Section 543 of the Code of Criminal Procedure provides, “Upon hearing the appeal the appellate court may, in cases where an erroneous *602judgment has been entered upon a lawful verdict or finding of fact, correct the judgment to conform to the judgment {sic) or finding, ” and that is what should be done in this case. The defendant pleaded guilty to a distinct crime for which a penalty is prescribed, and the judgment should be corrected by striking therefrom so much of it as adjudges the defendant to be an habitual criminal.
Judgment affirmed.