I am unable to agree with the majority of the court that this defendant was convicted by due process of law.
It is the boast of the common law that every accused person is presumed to be innocent until proven guilty, and we have made this presumption a part of our criminal procedure (Code of Criminal Procedure, § 389).
The fact that a second conviction of felony subjects the defendant to a heavier penalty is no justification for pleading the first conviction in the indictment for the second offense.
In People v. Raymond (96 N.Y. 38) Judge FINCH, speaking for the court, said: "The first offense was not an element of or included in the second, and so subjected to added punishment, but is simply a fact in the past history of the criminal, which the law takes into consideration when prescribing punishment for the second offense. That only is punished."
In other words, the fact of a first conviction does not become material until after the second conviction, and then only for the purpose of enabling the trial judge to impose the proper term of imprisonment.
The first conviction can be established by the production of the record before the trial judge, and the only possible fact to be litigated would be the identity of the defendant if disputed. If this inquiry into the past history of the accused is to be made by a jury the legislature should provide that the jury who have just rendered their verdict of guilty, or a new one to be drawn, shall hear the evidence and determine the question. This has been the law of England for fifty years and more.
To project the issue of a former conviction into the second trial before verdict rendered, practically deprives the defendant of the legal presumption of innocence, inevitably prejudices the jury against him, and takes from him his constitutional right to be convicted only by the judgment of his peers and due process of law.
It is urged that the constitutional question is not an open one in this court, and to support the contention two cases are *Page 551 cited. (Wood v. People, 53 N.Y. 511; Johnson v. People,55 N.Y. 512.) In neither of these cases was the constitutional question raised; they deal wholly with procedure.
The mere fact that for years it has been the practice to plead and prove the former conviction on the trial for the second offense does not show that the constitutional question has necessarily been passed upon, but rather, overlooked.
This practice is a reproach to the administration of justice, and speedy legislation should render it impossible.
I vote for a reversal of the judgment.
All concur with GRAY, J., for affirmance, except BARTLETT, J., who reads dissenting memorandum, and PARKER, Ch. J., not voting.
Judgment affirmed.