By the Court.
Benning J.delivering the opinion.
The offence charged against Hines, was charged as a second offence. The Court told the jury, “ that no proof of a former conviction, was necessary.” The jury found a general verdict of “ guilty.” Afterwards, the Court itself heard evidence, as to whether the offence was a second one, and on that evidence came to the conclusion, that it was, and sentenced Hines to a punishment much too great for any but a second offence.
We think, that the question, whether the offence ivas a second one, or not, was a question for the jury. In every such question, identity is involved, and that, beyond a doubt, is a matter for the jury. Nor is it meant, that all the other matters involved in the question, may not also be for the jury. It is a general principle, that whatever it is necessary to allege, it is necessary to p*rove. And no authority was read to us, to show that the case of an allegation, that the offence is a second one, is an exception to the rule, and we do not know of any such • authority. The allegation is certainly one of the "first importance to the accused, for if it is true, he becomes subject to a greatly increased punishment.
,[1.] HWe think then that the charge was erroneous.
It is hardly necessary to say, that we are not to be understood as meaning, that it is not permissible for a jury to find the accused not guilty of this part of the charge, but guilty of all the other part of it.
This charge was made the. third ground of the petition for the certiorari.
*617[2.] There is nothing in the first ground of the petition. The offence is stated in the language of the code.-
The second, was abandoned.
[3.] The charge excepted to in the fourth, was, as we think, clearly right^
[4.] We see nothing in the fifth ground. The Court certainly, had the power to receive secondary evidence o/ a lost paper. The Attorney General was competent as ^witness. We hardly think, that the State can be considere^1" the client” of the Attorney General, in the sense of the word, client, as used in the Act of 1850, rendering, attorneys at 'law incompetent to testify in certain cases.
The disposition of the third ground, makes a disposition of the sixth.
The result is, that we think, that the Court below should have sustained the certiorari on the third ground, and have ordered a new trial.
Judgment reversed.