This is an appeal by the state from an order sustaining defendant’s demurrer to an indictment and dismissing the action.
*426The prosecution is for the offense known as “interfering with the privacy of another” (ORS 167.165), and the charging part of the indictment reads:
“The said WALTER LEE WATERHOUSE on the 16th day of October A.D. 1955, in the Oounty of Multnomah and State of Oregon, then and there being, did then and there unlawfully and wilfully enter the upstairs apartment of a dwelling house, located at 506 Northeast Alberta Street in the City of Portland within said county and state, without the consent or permission of Evelyn Mary White, the lessee of the said apartment, the said Walter Lee Waterhouse not then and there being an officer, and the said Walter Lee Waterhouse there did then and there look through the open door of the bedroom of the said apartment without the consent or permission of the said Evelyn Mary White with intent to violate the privacy of the said Evelyn Mary White, the said bedroom at the said time and place being occupied by the said Evelyn Mary White, the said Walter Lee Waterhouse before the commission of the offense charged herein, was in the Circuit Court of the State of Oregon for the County of Multnomah convicted of the crime of Rape, Oregon Compiled Laws Annot[at]ed, section 23-420, now designated Oregon Revised Statutes, section 163.210, by plea of Guilty on the 27th day of October, 1953, and a sentence of imprisonment for one (1) year in the Oregon State Penitentiary adjudged by the said court on the 3rd day of November, 1953, for the said crime, which sentence was executed by service of the term of imprisonment.”
Defendant’s demurrer is based on the following grounds: (1) That the indictment includes prejudicial matter which would preclude a fair trial and procedural due process, to wit, the allegation that the defendant had been previously convicted of the crime *427of rape; (2) that the same allegation is immaterial and irrelevant; (3) that the facts stated do not constitute a crime; and (4) that the indictment charges more than one crime. Ground 3 will be considered later in this opinion.
The other specifications challenge the propriety of including allegations of prior offenses in an indictment where a statute provides more severe punishment for one who has previously been convicted of such prior offenses.
ORS 167.050 is such a statute. It reads:
“Violation of ORS 163.210, 163.220, 163.270, 167.035, 167.040, 167.045, 167.145, 167.165 or 167.210, by any person who has previously been convicted of a violation of any one, or more than one, of those sections, is punishable, upon conviction, by imprisonment in the state penitentiary for an indeterminate term not exceeding the natural life of such person.” (Italics added.)
The crime of interfering with the privacy of another is a violation of ORS 167.165. The crime of rape, the previous offense alleged in this indictment, is denounced by ORS 163.210. The penalty provided for violation of ORS 167.165, if prosecuted in the circuit court, is imprisonment in the county jail for not less than three months nor more than one year, or a fine of not less than $50 nor more than $1,000, or both; while the enhanced penalty for that offense under ORS 167.050, where the defendant has been previously convicted of rape or any of the other crimes referred to in that section, is imprisonment in the state penitentiary for an indeterminate term not exceeding the natural life of the person convieted.
The contention that the indictment charges more than one crime is settled adversely to the defendant *428by our decisions and does not call for discussion. Little v. Gladden, 202 Or 16, 19, 273 P2d 443; Castle v. Gladden, 201 Or 353, 360, 270 P2d 675; State v. Smith, 128 Or 515, 524, 273 P2d 323.
The question most debated, as to the propriety of including allegations of prior convictions in the indictment, where such convictions are material to the penalty, has also been decided by this court. In two cases entitled State v. Newlin, 92 Or 589, 596, 182 P 133, and 92 Or 597, 599, 182 P 135, we held, in opinions by Chief Justice McBride, that such an allegation is not only proper but necessary for the validity of a judgment imposing the enhanced penalty. The charge in each of these cases was the unlawful sale of intoxicating liquor, apparently in violation of Oregon Laws 1915, ch 141. Section 36 of the act provided severer penalties for second and third convictions, but no procedure was prescribed. The indictments failed to allege that the defendant had been previously convicted of violation of the prohibition law, but the circuit court, nevertheless, imposed the increased penalty. On appeal to this court the judgments were set aside and the cases remanded for resentence solely because of the court’s error in sentencing the defendant as a second offender. The court said:
“It was also suggested upon the argument that it was error to adjudge the defendant guilty of a second offense and sentence him accordingly, in the absence of an allegation in the indictment charging the prior conviction, and this seems to be the general holding of the courts: 22 Cyc. 356, and cases there cited.”
The mere statement of the case sufficiently shows that the defendant’s contention that this holding was dictum is completely lacking in foundation.
*429The Newlin decisions accord with the great weight of authority. In Massey v. United States, 281 F 293, 297 (8th Cir), the court, referring to statutes providing for greater punishment of second or subsequent offenses by the same person, cited decisions of courts of 27 jurisdictions, including Oregon, in support of the following statement:
“* * * It is the established rule, under such statutes, unless the statute designates a different mode of procedure, that, if the prosecutor desires to invoke the severer punishment provided as to second or subsequent offenders, the indictment or information must allege the fact of prior conviction, and the allegation of such conviction must be proved in the trial to the jury.”
The reason for the rule is, as the court there said, that “The statement of a prior conviction is regarded as a part of the description and character of the offense intended to be punished, and as an essential ingredient of such aggravated offense.” See, also, 1 Bishop on Criminal Law (9th ed) § 961 (quoted in State v. Smith, supra, 128 Or at p 522); III Wharton’s Criminal Procedure 2309, § 1877; 1 Wharton’s Criminal Evidence (12th ed) 498, § 233 (1955); 42 CJS 1057-1059, Indictments and Informations § 145; and the following annotations: 58 ALR 64; 82 ALR 366; 116 ALR 229; 132 ALR 107; 139 ALR 689.
“I regard it,” said Judge Gray in People v. Sickles, 156 NY 541, 547, 51 NE 288, “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 any wise, to prove the commission of the second offense; but that *430it aggravates the guilt of the prisoner and, as a hardened, or unreformed, criminal, subjects him to an increase punishment for the repeated crime.”
Our statute provides that the indictment shall contain “ A statement of the acts constituting the offense in ordinary and concise language, without repetition, and in such manner as to enable a person of common understanding to know what is intended.” (ORS 132.520 (2)).
If the prior offense is an ingredient of the crime then it must be alleged in the indictment and the burden is upon the prosecutor to prove it beyond a reasonable doubt. ORS 136.520.
This was the common-law procedure followed in England (Rex v. Jones, 6 Car & P 391 [1834]), until it was changed by acts of Parliament, which provided, in substance, that so much of the indictment as charged a prior offense should be withheld from the jury until after a verdict of guilty had been rendered on the current charge, whereupon the question of a previous conviction should be determined by the jury if the defendant should deny it. 6 and 7 Wm IV, ch 111; 24 and 25 Vict Ch 99, § 27. See Graham v. West Virginia, 224 US 616, 625-626, 56 L ed 917, 32 S Ct 583. In sustaining the constitutionality of the habitual criminal law of New York, which was subsequently adopted by the Oregon legislature (State v. Smith, supra; Macomber v. State, 181 Or 208, 217, 180 P2d 793), the court, in People v. Sickles, supra at p 546, said with reference to the English procedure:
“* * * qr^g 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 *431legislation 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.”
See, also, People v. Gowasky, 244 NY 451, 456, 155 NE 737, 58 ALR 9.
By court decision a procedure similar to that now employed in England has been adopted in Connecticut. State v. Ferrone, 96 Conn 160, 172-176, 113 A 452. But it should be observed that both in England and Connecticut prior offenses must be alleged in the indictment. It was so expressly held in State v. Delmonto, 110 Conn 298, 147 A 825. It should be remembered that we are dealing now only with the question whether the indictment is vulnerable to demurrer.
There is, of course, no common-law procedure as such in this state. Williams v. Pacific Surety Co., 66 Or 151, 155, 127 P 145, 131 P 1021, 132 P 959, 133 P 1186. When we speak of the common-law procedure in this opinion we mean the procedure in effect in England before it was changed by statute and which remains the same in Oregon by very force of the statutes of this state prescribing the contents of an indictment and the duty of the state to prove the material allegations thereof beyond a reasonable doubt.
The contention that the practice of proving a former conviction on the trial violates the defendant’s constitutional right to procedural due process does not have the support of any authority that we have seen. It rests upon the proposition that it deprives the defendant of the presumption of innocence and relieves the prosecution of the burden of proving the defendant’s guilt. The question was directly presented in People v. Sickles, supra, and resolved adversely to *432the defendant’s position. Judge Gray, writing the opinion for the court, said:
“ * * * When it is said that the presumption of the defendant’s innocence was destroyed by the introduction of proof of his former conviction, the proposition is based upon mere assumption and it is the error in that assumption which affects the appellant’s argument. The statute has not abrogated the rule as to the presumption of innocence. It is expressly preserved to the defendant by section 389 of the Code of Criminal Procedure, and the defendant had the benefit of it upon his trial; in that the court distinctly instructed the jury to that effect. It will not be presumed that the jurors failed to obey the instruction; or that they did not accord to the accused the benefit of every reasonable doubt upon the evidence. There can be no legal presumption that the presumption of the defendant’s innocence will be prejudiced. The legislature can do as the English Parliament has done; by changing the rule of procedure. But that rests in the legislative discretion and, until it is exercised in that direction, the established procedure must be followed and the proof must be such as to meet the charge and bring the case within the statute.” 156 NY at p 549.
In Graham v. West Virginia, supra, the court held, in an opinion by Mr. Justice Hughes, later Chief Justice Hughes, that there is no deprivation of due process of law because the question as to a former conviction is passed upon separately. In the course of the opinion the court said:
“* * * Although the State may properly provide for the allegation of the former conviction in the indictment, for a finding by the jury on this point in connection with its verdict as to guilt and thereupon for the imposition of the full sentence prescribed, there is no constitutional mandate which *433requires the State to adopt this course even where the former conviction is known.” 224 US at p 629.
To the same effect see People v. Coleman, 145 Cal 609, 79 P 283; 42 CJS 1058, Indictments and Informations § 145. In State v. Stump, 16 Wash2d 140, 149, 132 P2d 727, a case involving prior convictions under a liquor prohibition law, the court gave its approval to the practice of charging prior convictions in the information and proving them in connection with the main charge, although the statute failed to prescribe any procedure in that regard. We mention this ease particularly because our attention has been called to the earlier Washington decision of State v. Kirkpatrick, 181 Wash 313, 43 P2d 44, in which the court held that, under the Washington habitual criminal law, which likewise does not prescribe the procedure for alleging and proving prior offenses, it was error to include an allegation of a prior conviction in the indictment. The court said “that we refuse to be bound by an archaic comm on-law practice which impinges upon the fair and impartial trial guaranteed by the Constitution to every one charged with a criminal offense.” If this was intended to be a holding that the common-law practice is unconstitutional, then it has been overruled by State v. Stump, supra, unless one should accept the view, which no one has suggested, that the constitutional rights of persons accused of violating a prohibition law are something less than those of persons charged with other and, perhaps, more serious offenses.
In this connection it may be observed that the habitual criminal law of Washington originally provided for a separate proceeding for determining whether the defendant had been previously convicted. Laws of Washington 1903, p 125. In 1909 the law was *434changed by omitting all reference to such procedure. In State ex rel Edelstein v. Huneke, 140 Wash 385, 249 P 784, 250 P 469, it was contended by the defendant that the procedure followed, namely, the filing of an information and the proof of prior convictions after he had been found guilty on the principal charge, was violative of the Due Process Clause of the Fourteenth Amendment. The court, reviewing the authorities, concluded that they supported unanimously “the principle firmly ingrained in our criminal law that one may not be sentenced for a second offense unless the indictment aver and the evidence prove that it is a second offense.” But it was said that ever since the change in the law in 1909, as before, the practice had been for prosecutors to proceed in the manner followed in the case before the court, and, while there was much force in the argument that failure to provide for procedure in the Law of 1909 “should be construed to be an intention of the Legislature to abandon the defendant to the harsh treatment followed under the common law,” still the court could not “agree that the refusal of a prosecutor to apply the harsher rule vitiates the proceedings, ’ ’ and that no defendant had any right to demand that a certain procedure be followed unless the failure to do so might possibly work to his detriment. The claim of a violation of constitutional rights was, therefore, rejected.
Viewed against the background of the legislative and judicial history in Oregon relating to this subject, it seems reasonable to conclude that, in omitting to prescribe a different procedure when it enacted ORS 167.050, the legislature intended that the common-law procedure should govern. The statute was originally passed in 1953. The Newlin cases were decided in 1919. In 1921 the legislature passed an Habitual Criminal *435Act, which provided that “former judgments of conviction shall be referred to in the indictments,” Oregon Laws 1921, eh 70. This act was repealed by Oregon Laws 1927, ch 334, and a new Habitual Criminal Act was passed, taken, as previously stated, from New York, and containing procedural provisions under which an information alleging prior convictions must be filed and a hearing had thereon after a verdict of guilty has been found upon the charge in the indictment. In State v. Smith, supra, which was a prosecution under the 1927 Act, the defendant complained that the indictment should have alleged his prior convictions, but the court held that, in view of the repeal of the 1921 Act and the adoption of the 1927 Act, such an allegation was unnecessary. The court referred to People v. Gowasky, supra, a decision rendered shortly prior to the adoption of the New York Habitual Criminal Act by the Oregon legislature, and which held that it was not necessary to allege previous convictions since the statute provided a different procedure. The court noted that the New York court said that this “seems eminently fair to any prisoner,” but that “the old practice, though no longer necessary, was still permissible.” (128 Or at pp 522-523.)
The 1927 Act became OCLA, Title 28, ch 6. It was repealed by Oregon Laws 1947, ch 585, which is a reenactment of the habitual criminal law, containing in § 4 thereof some changes in the procedural provisions. Further changes were made by Oregon Laws 1951, ch 383, § 4, and again by Oregon Laws 1955, ch 663, § 5, now ORS 168.040, the last, no doubt, induced by our decision holding unconstitutional a portion of § 4 of the 1951 Act. See State v. Cory, 204 Or 235, 282 P2d 1054, decided April 20, 1955. Throughout its history, how*436ever, since 1927 the habitual criminal law has provided a post trial procedure .for proving prior offenses.
Knowledge on the part of the legislature of these earlier enactments is presumed (Watts v. Gerking, 111 Or 641, 658, 22 P 318, 228 P 135, 34 ALR 1489; 50 Am Jur 354, Statutes § 354), and it is likewise presumed that the statute was enacted “in the light of such existing judicial decisions as have a direct bearing upon it.” 50 Am Jur 312, Statutes § 321; State v. Raper, 174 Or 252, 254, 149 P 2d 165. The omission from the statute, therefore, of any procedural provisions whatever must be regarded as of controlling significance upon the question of the legislative intention. And the Habitual Criminal Act itself cannot be applied here because it relates only to felonies, while ORS 167.050 includes misdemeanors, to wit, interfering with the privacy of another.
It is contended that the common-law procedure applies only in cases of similar offenses. With the exception of two jurisdictions the contention is not supported by the authorities. Among the numerous decisions to the contrary are the following: People v. Rosen, 208 NY 169, 172, 101 NE 855; Blackburn v. State, 50 Oh St 428, 436, 36 NE 18; Larney v. City of Cleveland, 34 Oh St 599, 601; Commonwealth v. Payne, 242 Pa 394, 399, 89 A 559; State v. Reilly, 94 Conn 698, 110 A 550; State v. Findling, 123 Minn 413, 416, 144 NW 142; State v. Manecke, 139 Mo 545, 548, 41 SW 223; Commonwealth v. Walker, 163 Mass 226, 39 NE 1014; Wright v. State, 16 Okla Cr 458, 460, 184 P 158; Alsheimer v. State, 165 Wis 646, 647, 163 NW 255. The reason for the rule, as quoted above from Massey v. United States, viz., that “the statement of a prior conviction is regarded as a part of the description and character of the offense intended to be punished, and *437as an essential ingredient of such aggravated offense,” applies equally to disparate as to similar offenses. The Kansas court, however, has recognized the asserted distinction as between the habitual criminal law and the prohibition law of that state: Levell v. Simpson, 142 Kan 892, 52 P2d 372; State v. Jones, 147 Kan 8, 75 P2d 230; and the Washington court cited these cases with approval in State v. Stump, supra.
The principal objection to the common-law procedure is that the allegation and proof of prior offenses is likely to create prejudice against the defendant in the eyes of the jury. We recognize the force of the objection, but are unable to see that it is any less valid in the case of similar crimes than in the case of crimes of a different character. But, even on the basis of the reasoning of the Kansas court, the indictment in the case at bar, it would seem, should be sustained. In Levell v. Simpson, supra, the court said that the persistent violation of the prohibitory law is “a separate and distinct crime,” that a first offense is a misdemeanor punishable by a moderate fine and jail sentence, while a subsequent infraction “is a distinct felony,” and, therefore, “all the formalities of a felonious charge should be pleaded in the information.” All the offenses referred to in ORS 167.050 are of the same kind. The title of the original act, Oregon Laws 1953, ch 641 (of which ORS 167.050 is amendatory), is “AN ACT Relating to criminal offenses motivated by or involving sexual stimulation,” etc. The offense of interfering with the privacy of another is, as stated, a misdemeanor. By ORS 167.050 it is made a felony punishable by life imprisonment if the defendant has been previously convicted of rape or any of the other crimes enumerated. The same necessity exists here for pleading “all the formalities of a *438felonious charge” as under the Kansas prohibitory law.
It is contended that ORS 137.080-137.110, both inclusive, and 137.990 prescribe the procedure for determining the penalty in this class of eases. These sections provide the manner in which, after a plea or verdict of guilty, circumstances in aggravation or mitigation of the punishment may be brought to the attention of the court. They are applicable only in a case “where a discretion is conferred upon the court as to the extent of the punishment to be inflicted.” ORS 137.080. No such discretion is conferred by ORS 167.050. The statutes invoked by the defendant were not enacted for the purpose of determining the penalty which the law prescribes for the particular offense, but the penalty to be imposed within the limits of the governing statute in view of the existing circumstances. To be specific, the penalty for the crime for which the defendant was indicted, if it be a first offense, is at the most imprisonment in the county jail for one year and a fine of $1,000. Should a person be indicted for that offense and convicted, the court might have a hearing and determine whether the maximum penalty should be imposed or something less than the maximum. The court could consider his previous conviction of rape, if he had been so convicted, as a circumstance affecting its exercise of discretion. But the court could not sentence him as a second offender because he had never been charged as such in any manner known to the law. The contention only serves to illustrate the need of applying the common-law procedure in the absence of legislation prescribing a different procedure.
As stated, one of the grounds of the demurrer is that the indictment does not allege sufficient facts to constitute the crime charged. The point made is that *439the indictment fails to allege, in the words of the statute, that the apartment entered by the defendant “was not his own.” It does allege that the defendant entered the apartment “without the consent of Evelyn Mary White, the lessee of said apartment.” We think that this allegation sufficiently negatives the notion that it was the apartment of the defendant.
We conclude that the indictment is sufficient, that it is drawn in the only manner permissible under the law of this state if the defendant is to be prosecuted as for a second offense, and that the procedure to be followed violates no constitutional rights of the defendant. The legislature can provide a procedure fairer to the accused, as in the case of the Habitual Criminal Act, but it has not seen fit to do so, and it is not the province of this court to interfere with the policy established by the legislature when acting within the limits of its constitutional powers.
By the terms of the statute here dealt with a person twice convicted of violations of what is known as a “peeping Tom” statute—a misdemeanor—, or a person twice convicted of violations of ORS 167.145, relating to indecent exposure,—likewise a misdemeanor —, is liable to be punished by life imprisonment. Consideration of the extreme severity of the penalty in its relation to the gravity of such offenses may suggest to the legislative assembly the advisability of ameliorating amendments. We make this observation with full realization of the difficulty society experiences in attempting to cope with the evil aimed at by the statute.
The court erred in sustaining the demurrer. The judgment is reversed and the cause remanded for further proceedings in conformity to this opinion.
Tooze, Acting Chief Justice, died December 21,1956.