People v. Warner

244 A.D. 833

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: May 15, 1935
• Status: Published

Opinions

There was ample proof of defendant’s condition at the time of the commission of the offense. The previous conviction was established by defendant’s confession and by his admissions while a witness. The appellant contends that it was incumbent upon the prosecution to establish this previous conviction by testimony other than defendant’s own confession under section 395 of the Code of Criminal Procedure. The previous conviction merely characterizes the degree of culpability and does not change the identity of the crime. The additional proof required by section 395 does not extend to such independent crime. (People v. Lytton, 257 N. Y. 310.) Some of the evidence as to the previous conviction indicated that it was had on Sunday, September 25, 1927. This was not called to the attention of the court until defendant moved in arrest of judgment.

Judgment of conviction affirmed.

Hill, P. J., Rhodes and Bliss, JJ., concur; Heffeman, J., dissents, with an opinion, in which Crapser, J., concurs.