Cullen, J.:
The appellant was indicted for the crime of robbery in the first degree, charged as a second offense. (Penal Code, § 688.) On arraignment he pleaded not guilty. When the trial of the indictment was moved, and before the jury was impanelled, the defendant admitted his former conviction, and sought to have evidence of such conviction excluded from the jury. This application was denied, and on the trial the first conviction was proved and the defendant convicted as charged in the indictment; thereupon he was sentenced to imprisonment for the term of twenty-one years. The sole question raised on this appeal is the admissibility of the evidence of the first conviction after the concession or admission made by the defendant before the trial...
That it is necessary that the indictment should charge the first conviction is settled by authority, and the question is not open to [471]*471debate. (Wood v. The People, 53 N. Y. 511; Johnson v. The People, 55 id. 512.) The plea of the defendant was not guilty.. This put in issue every material allegation of fact in the indictment.. There is no practice in this State which permits a defendant to admit part of the charges of an indictment and restrict the trial to the other charges put in issue. Whatever, therefore, may be the views of Mr. Bishop (Criminal Law, vol. 1, § 961) or of Mr. Wharton (Criminal. Law, § 3418) as to the advisability of a procedure which would restrict the jury to passing upon the issue of the defendant’s, guilt of •the particular act charged, and thus relieve him. from the prejudice-which might be excited by the proof of his prior offense, it is sufficient to say 'that the law of this. State has not provided for any sucli practice.
' The appellant, however, goes further, and claims that any provision of law which authorizes the People to prove a former offense, and to this extent prejudice the presumption of-innocence to which he is entitled, is not due process of law, and, therefore, unconstitutional. On this question, also, we are concluded by authority. In Johnson v. People (supra) it was argued that it was error to receive: evidence of the commission of the former offense, and thus show the: prisoner’s bad character before he had put his character in issue.. The objection was held untenable. It was there said by Church, Oh. J.: “ A more severe penalty is denounced by the statute for a-second offense ; and all the facts to bring the case within the statute must be established on the trial. The objection that the evidence may affect the prisoner’s character has no force when such evidence relates to the issue to be tried. Such evidence may be-prejudicial to a prisoner as to the second offense, and a case might occur of a conviction upon too slight evidence, through the influence-which a previous conviction of a similar offense might exert upon the minds of the jury ; but there is no legal presumption that such a. result will ever be produced. An English statute, passed in 1837, requires the principal charge to be first found by the jury, and then, authorizes proof, of the former conviction to be presented to them but we have no such statute.”
Though the point that the statute was unconstitutional is not directly discussed in the opinion, it is necessarily involved in the decision of the court. As the question is thus settled by authority, [472]*472we should not deem it wise to enter into its further discussion were it not for the reliance placed by the appellant on an expression to be found in the opinion in the case of The People v. Raymond (96 N. Y. 38). It was there said by Judge Finch : “ 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.” That it is only tiie second offense which is punished is unquestionable; because after the deféndant has expiated his first transgression by undergoing punishment therefor, it would be beyond the power of the State to punish him a second time for that offense. But I feel constrained to .take issue .with the proposition that the first offense "was not an element of or included in the second, if that statement is to be construed as broadly as contended for by the appellant’s counsel. It is first to be observed that in the Raymond case the former conviction was charged in the indictment and proved on the trial. There is nothing which prevents the Legislature from making an act committed by one who has previously been guilty of- a crime, a greater offense than the same act when- done by.a person hitherto innocent of offense ; and I think it is on this principle alone that criminal legislation of the character of that under discussion can be upheld as constitutional. The statutory provision as to punishing second offenses is not wholly exceptional. Section 86 of the Penal Code (which is but a re-enactment of the previous provisions of the Revised Statutes) provides for the punishment of escaping prisoners. A prisoner who, confined in prison, or being iii lawful custody, by force or fraud escapes therefrom, is guilty of felony if such custody or confinement is upon a charge, arrest, commitment or conviction for a felony; and of a misdemeanor if such custody or confinement is upon a charge, arrest, commitment or conviction for a misdemeanor. Thus, two men breaking the county jail together, one confined for a felony and the other only for a misdemeanor, while-guilty of precisely the same acts, would commit two different crimes —the one a felony and the other a misdemeanor. It is apparent that in such a case the state, condition, or what may be termed the previous history of the two offenders, is by the -express terms of the statute an essential element of the crime itself. I concede that the Legis[473]*473lature may direct the places for incarceration of criminals of different-classes, prescribing that women and children shall be confined only in penitentiaries or reformatory institutions, while men grown shall be punished in the State prisons, and that in such cases it is not necessary that the indictment should charge the age or sex of the-defendant. It may be true that the Legislature may authorize the judge to mitigate the punishment of women or children. But under section 688 of the Code, for the second offense the defendant must be sentenced to at least the longest 'term provided as a punishment for the first offense, and may be sentenced for twice that time. It seems to me clear that the difference in the punishments necessarily constitutes a difference in the offenses, the distinction between which depends in no wise on nomenclature. It may be, if the constitutional provision as to cruel and inhuman punishments did not prevent, that we might go back to the old common law and make every felony punishable by death, in the discretion of the court. In such a case, the discretion being in the court as to all offenders, the fact that it might impose more severe punishment on one than on the other, would be no violation of individual rights. But if the law provided that, in case of conviction for certain offenses, one class of prisoners could be sentenced to only a year’s imprisonment while another class must, without discretion in the court, be put to death, no refinement of reasoning can prevent us from seeing that the facts which constitute this classification must be integral parts' of the offense itself.
The authorities cited from other States are not in opposition to this view. In
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Cullen, J.:
The appellant was indicted for the crime of robbery in the first degree, charged as a second offense. (Penal Code, § 688.) On arraignment he pleaded not guilty. When the trial of the indictment was moved, and before the jury was impanelled, the defendant admitted his former conviction, and sought to have evidence of such conviction excluded from the jury. This application was denied, and on the trial the first conviction was proved and the defendant convicted as charged in the indictment; thereupon he was sentenced to imprisonment for the term of twenty-one years. The sole question raised on this appeal is the admissibility of the evidence of the first conviction after the concession or admission made by the defendant before the trial...
That it is necessary that the indictment should charge the first conviction is settled by authority, and the question is not open to [471]*471debate. (Wood v. The People, 53 N. Y. 511; Johnson v. The People, 55 id. 512.) The plea of the defendant was not guilty.. This put in issue every material allegation of fact in the indictment.. There is no practice in this State which permits a defendant to admit part of the charges of an indictment and restrict the trial to the other charges put in issue. Whatever, therefore, may be the views of Mr. Bishop (Criminal Law, vol. 1, § 961) or of Mr. Wharton (Criminal. Law, § 3418) as to the advisability of a procedure which would restrict the jury to passing upon the issue of the defendant’s, guilt of •the particular act charged, and thus relieve him. from the prejudice-which might be excited by the proof of his prior offense, it is sufficient to say 'that the law of this. State has not provided for any sucli practice.
' The appellant, however, goes further, and claims that any provision of law which authorizes the People to prove a former offense, and to this extent prejudice the presumption of-innocence to which he is entitled, is not due process of law, and, therefore, unconstitutional. On this question, also, we are concluded by authority. In Johnson v. People (supra) it was argued that it was error to receive: evidence of the commission of the former offense, and thus show the: prisoner’s bad character before he had put his character in issue.. The objection was held untenable. It was there said by Church, Oh. J.: “ A more severe penalty is denounced by the statute for a-second offense ; and all the facts to bring the case within the statute must be established on the trial. The objection that the evidence may affect the prisoner’s character has no force when such evidence relates to the issue to be tried. Such evidence may be-prejudicial to a prisoner as to the second offense, and a case might occur of a conviction upon too slight evidence, through the influence-which a previous conviction of a similar offense might exert upon the minds of the jury ; but there is no legal presumption that such a. result will ever be produced. An English statute, passed in 1837, requires the principal charge to be first found by the jury, and then, authorizes proof, of the former conviction to be presented to them but we have no such statute.”
Though the point that the statute was unconstitutional is not directly discussed in the opinion, it is necessarily involved in the decision of the court. As the question is thus settled by authority, [472]*472we should not deem it wise to enter into its further discussion were it not for the reliance placed by the appellant on an expression to be found in the opinion in the case of The People v. Raymond (96 N. Y. 38). It was there said by Judge Finch : “ 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.” That it is only tiie second offense which is punished is unquestionable; because after the deféndant has expiated his first transgression by undergoing punishment therefor, it would be beyond the power of the State to punish him a second time for that offense. But I feel constrained to .take issue .with the proposition that the first offense "was not an element of or included in the second, if that statement is to be construed as broadly as contended for by the appellant’s counsel. It is first to be observed that in the Raymond case the former conviction was charged in the indictment and proved on the trial. There is nothing which prevents the Legislature from making an act committed by one who has previously been guilty of- a crime, a greater offense than the same act when- done by.a person hitherto innocent of offense ; and I think it is on this principle alone that criminal legislation of the character of that under discussion can be upheld as constitutional. The statutory provision as to punishing second offenses is not wholly exceptional. Section 86 of the Penal Code (which is but a re-enactment of the previous provisions of the Revised Statutes) provides for the punishment of escaping prisoners. A prisoner who, confined in prison, or being iii lawful custody, by force or fraud escapes therefrom, is guilty of felony if such custody or confinement is upon a charge, arrest, commitment or conviction for a felony; and of a misdemeanor if such custody or confinement is upon a charge, arrest, commitment or conviction for a misdemeanor. Thus, two men breaking the county jail together, one confined for a felony and the other only for a misdemeanor, while-guilty of precisely the same acts, would commit two different crimes —the one a felony and the other a misdemeanor. It is apparent that in such a case the state, condition, or what may be termed the previous history of the two offenders, is by the -express terms of the statute an essential element of the crime itself. I concede that the Legis[473]*473lature may direct the places for incarceration of criminals of different-classes, prescribing that women and children shall be confined only in penitentiaries or reformatory institutions, while men grown shall be punished in the State prisons, and that in such cases it is not necessary that the indictment should charge the age or sex of the-defendant. It may be true that the Legislature may authorize the judge to mitigate the punishment of women or children. But under section 688 of the Code, for the second offense the defendant must be sentenced to at least the longest 'term provided as a punishment for the first offense, and may be sentenced for twice that time. It seems to me clear that the difference in the punishments necessarily constitutes a difference in the offenses, the distinction between which depends in no wise on nomenclature. It may be, if the constitutional provision as to cruel and inhuman punishments did not prevent, that we might go back to the old common law and make every felony punishable by death, in the discretion of the court. In such a case, the discretion being in the court as to all offenders, the fact that it might impose more severe punishment on one than on the other, would be no violation of individual rights. But if the law provided that, in case of conviction for certain offenses, one class of prisoners could be sentenced to only a year’s imprisonment while another class must, without discretion in the court, be put to death, no refinement of reasoning can prevent us from seeing that the facts which constitute this classification must be integral parts' of the offense itself.
The authorities cited from other States are not in opposition to this view. In State v. Freeman (27 Vt. 523) defendant 'was convicted of selling liquor under a statute which provided that the punishment should be increased if the defendant had been convicted of former offenses. Proof of former conviction could, by the statute, Be made at any time before sentence. The validity of this legislation was upheld by the court on the ground that the offense was not a crime, but a mere violation of police- regulation which the statute could have authorized the justice to determine summarily, without the intervention of a jury at all. The same principle was held in State v. Haynes (35 Vt. 570). But in State v. Spaulding (61 id. 505), the statute having been, changed, it was held to be necessary to prove conviction of the former offense before the jury. In [474]*474People v. Delany (49 Cal. 394) it was held that if the defendant pleads guilty to the offense as charged in the indictment, where the indictment charges the offense of petit larceny committed after a previous conviction for the same crime, the plea confesses the offense charged, which includes the previous conviction. ■ Whatever decisions are to be found in that State apparently in conflict with the one cited arise out of the peculiar practice at one time authorized by the Penal .Code of that State. By section 1025, on an indictment, for a second offense, the defendant was allowed to plead separately to the former conviction and to the new offense. If he pleaded guilty to the former con viction, but not guilty of the recent offense,, then only the latter was passed on by the jury. But if. he pleaded not guilty to both, charges of the indictment, then both issues were determined by the trial jury. (See Ex parte Young Ah Gow, 73 Cal. 438.) These cases not only justify proof of the second conviction on.the trial, but would indicate that in á case of serious .crimes the charge of former conviction constitutes an ingredient of the crime, and must, when put in issue, be passed on by the jury. All that Thomas v. Commonwealth (22 Gratt. 912) is authority for is that the jury, in addition to the verdict of guilty, must specially And that the defendant had been' formerly convicted.
The English practice, under the first statute enacted of this characterj was to charge in the indictment and prove on the trial the prior conviction. (Rex v. Jones, 6 Car. & P. 391.) This practice was altered by statute so that on a plea of not guilty the jury first inquires into the subsequent offense, but if convicted of that offense then the prior conviction is submitted to and determined by the jury. The fact that, despite the change in procedure, the prior conviction is still to be found by 'the jury, would seem strong, evidence that the jurists of that country were of opinion that such prior conviction constituted an integral part of the offense.
If the first offense is an. ingredient of the crime charged, it must be submitted to the júry when the defendant pleads not guilty. We think it would bé well if our criminal procedure were changed so as to accord with the English practice, and suffer or permit the defendant to sever his plea, alio wing, him to confess his former conviction while denying the recent offense. Such change, however, must proceed from the-Legislature. As long as the law stands in [475]*475its present condition no right of the defendant is violated by .proving his prior conviction. In fact, in the case suggested of escape from prison, if done after sentence, we do not see how it would be possible by any change in the law to avoid proving the defendant’s, conviction of the crime for which he was imprisoned.
The judgment should be affirmed.
All concurred,- except Goodrich, P. J., and Woodward, J., dissenting.