19

it is extremely probable that the fact of his former conviction, as thus called to their attention, will prejudice him greatly in their minds, and tend to make them think that his prior character is bad. Notwithstanding this it is always proper, in the absence of a statute providing a contrary rule, that the indictment should be laid before the jury and read to them. And usually the state is permitted to put in the record of the prior conviction as a part of its case before the verdict is reached on the substantive crime. 2o Often by statute it is enacted that if the accused admits the prior conviction, and that he was the person thus convicted, the part of the indictment relating thereto need not be read to the jurors, nor have they any right or occasion to consider it in any way. No evidence of any sort relating to the prior conviction can then be produced before them, nor can they be charged thereon by the court." But in New York it has been held that as a prior conviction is a fact of criminality which the state must prove, the admission of a prior conviction by counsel for the accused does not preclude the state from proving it, particularly where the admission does not concede the prior conviction as alleged in the indictment and is made after the state has begun its case, 22

By virtue of the discretionary power of the court to regulate its own procedure, the court may withhold from the jurors the issue of former conviction until after a verdict is reached, and may then determine the issue by taking judicial notice of the prior conviction, or by the production of the record. But where this is done it may be that the issue of the identity of the accused

20

V. Morrow, 9 Smith, 129 Iowa 709, 106 N. W. 187, 4 L. R. A. (N. S.) 539n.

"Maguire v. State, 47 Md. 485, 497; State v. Manicke, 139 Mo. 545, 41 S. W. 223; People v. Sickles, 156 N. Y. 541, 51 N. E. 288, followed in People v. Craig, 195 N. Y. 190, 194, 88 N. E. 38; which expressly holds that a prior conviction is an essential element of the criminality of the prisoner and that it may and in fact must be proved by the state as a part of its case. Compare McWharter v. State, 118 Ga. 55, 44 S. E. 873; State v.

21 People v. Meyer, 73 Cal. 548, 549, 550, 15 Pac. 95; Ex parte Young Ah Gow, 73 Cal. 438, 443-451, 15 Pac. 76, construing sections 1093, 1158 of California Code.

22 People v. Jordan, 125 App. Div. (N. Y.) 522, 109 N. Y. S. 840. The rule is the same as to the right of the state to prove a prior conviction even when it was conceded before the jury was impanelled. People v. Sickles, 156 N. Y. 541, 51 N. E. 288.

with the man mentioned in the record may come up, and this issue of identity cannot then be tried by the jury to whom it of right belongs.

23

In England it is provided by statute that the accused shall only be called on to plead to so much of the indictment as charges the subsequent offense. If he pleads guilty, or is found guilty, he shall then be asked whether he has previously been convicted, and if he denies that he has the jury may determine the fact.**

24

§ 513. Necessity of proving discharge from prison.-Where the statute provides in terms for a subsequent crime committed "after a conviction and a discharge from prison, by reason of expiration of sentence or pardon," it will be necessary not only to prove the conviction but the discharge from prison as well. The fact of the expiration of the term of imprisonment or the pardon is material and must be affirmatively proved. Neither can be presumed from mere lapse of time, so as to require that the accused shall be compelled to prove that he was not discharged.” The fact of the discharge may be proved by a certified copy of the prison record where such a record is admissible by statute, or by the oral testimony of a prison official who has a competent knowledge of the fact. The mode of proving pardons is elsewhere fully elucidated. 20

§ 514. Proof of the prior conviction-How made.-The prior conviction of the accused can only be proved by the production in court of an attested or duly authenticated copy of the record. which usually must be certified as a true copy by the clerk, under the seal of the court, if it have a seal. A statute which provides

23

24 and 25 Vic., ch. 96, § 116, and ch. 99, § 37.

24 Reg. v. Fox, 10 Cox C. C. 502; Reg. v. Martin, L. R. 1 C. C. 214; Reg. v. Hilton, 8 Cox C. C. 87, 5 Jur. N. S. 47, 28 L. J. M. C. 28, 7 W. R. 59; Reg. v. Woodfield, 16 Cox C. C. 314.

25 Wood v. People, 53 N. Y. 511,

27

27

V.

Maguire v. State, 47 Md. 485, 497; Reg. v. Clark, 20 Eng. L. & E. 582; Commonwealth Miller, 8 Gray (Mass.) 484, 485; Kane v. Commonwealth, 109 Pa. St. 541, 545; Commonwealth V. Phillips, II Pick (Mass.) 28, 30; Commonwealth v. Hughes, 133 Mass. 496, 497; Rector v. Commonwealth, 80 Ky. 468, 470, construing Kentucky General Statutes, chap. 25, art. 1, § 12; State v.

'for proof of previous conviction by the record lets in only the verdict, judgment of conviction and sentence, and the previous indictment is inadmissible.28 Nor can the prosecution show the facts relating to the prior offense. Sometimes the docket entries of the clerk have been received when no other record has been kept, or where the record was not made up.29 And in case documentary evidence cannot be procured the prior conviction may be proved by parol, if no objection is made.30

The issue of the prior conviction of the prisoner is for the jury, involving, as it does, a question of the identity of the person now accused with the person whose name is mentioned in the record of the prior conviction.31 It has been held that proof of a prior conviction is not open to the objection that it tends to prejudice the jury by showing that the accused has been guilty of a separate and independent crime; or because it tends to establish his bad character before he has put his character in issue, as the purpose of this evidence is not solely to prove bad character.32 The state is not bound to prove as a part of its case that the prior conviction had not been vacated, set aside or reversed, and if such be the case the burden of proof is on the accused.33

$ 515. Proof of the identity of the accused with the person previously convicted. The identity of the accused with him who was previously convicted must be proved and the burden of proof is

Vaughan, 199 Mo. 108, 97 S. W. 879; Oliver v. Commonwealth, 113 Ky. 228, 67 S. W. 983, 24 Ky. L. 84; People v. Meyer, 73 Cal. 548, 15 Pac. 95; Ex parte Young Ah Gow, 73 Cal. 438, 15 Pac. 76; Mitchell v. State, 52 Tex. Cr. 37, 106 S. W. 124, 105 Am. St. 983, note; People v. Koehler, 146 Ill. App. 541.

that a sentence was had. State v. Hines, 68 Me. 202, 203.

31 State v. Lashus, 79 Me. 504, 506, II Atl. 180; State v. Robinson, 39 Me. 150, 155; State v. Spaulding, 61 Vt. 505, 17 Atl. 844; State v. Freeman, 27 Vt. 523, 527; State v. Haynes, 35 Vt. 570, 572; Rector v. Commonwealth, 80 Ky. 468, 471; Maguire v. State, 47 Md. 485, 497.

Johnson v. People, 55 N. Y. 512, 514, affirming 65 Barb. (N. Y.) 342, and compare Kane v. Commonwealth, 109 Pa. St. 541, 545.

33 Tall v. Commonwealth (Ky.), 110 S. W. 425, 33 Ky. L. 541.

on the state.

35

The question whether the person who was convicted at the former trial is identical with the person who is now accused, and who is now on trial, is one of fact for the jury. The defendant's admission of identity will not be sufficient to establish it. But, in the absence of this, the identity must be proved. 3

37

36

The identity of the name of the convict mentioned in the record with the name of the prisoner at the bar, is some evidence of identity of person. Whether it shall be conclusive depends on the connecting circumstances.38 In most cases, however, identity of name alone is not sufficient," but ought to be supplemented by other evidence, preferably by that of an eye-witness of the former trial or by that of some acquaintance of the prisoner.

40

It is never necessary to produce an eye-witness who can swear of his own knowledge that he saw the accused convicted." The proof of the identity may relate to the identity while the accused was in custody under the prior sentence.2 In con

35

trial, with the person named in the record is a question of fact. The identity of name is some evidence of identity of person, more or less potent, according to connecting circumstances, but it is not, certainly in this

State v. Smith, 129 Iowa 709, 106 N. W. 187, 4 L. R. A. (N. S.) 539n. State v. Freeman, 27 Vt. 523; State v. Haynes, 35 Vt. 570, 572; Hines v. State, 26 Ga. 614; State v. Lashus, 79 Me. 504, 11 Atl. 180. Kane v. Commonwealth, 109 Pa. case, sufficiently conclusive to authorSt. 541, 545.

ize the court to take it from the jury.” "Reg. v. Leng, 1 F. & F. 77, 78.

41

42

Thus, in an English case, evidence that the prisoner was brought to the Leeds Borough Gaol under a warrant which is produced, which is signed by the same magistrate, which bears the same date, having the same names of prosecutor and prisoner, and for the same offense, and having the same kind and duration of punishment as was imposed under the commitment, and which are recited in the certificate of the record, has been held sufficient to prove identity. Reg. v. Leng, 1 F. & F. 77, 78. In Reg. v. Crofts, 9 C. & P. 219, the governor of

clusion it may be said that the principal crime charged for which the accused is now on trial will be presumed to be the only one that the accused has ever committed until the contrary is proved. 43

the gaol was permitted to testify on the issue of identity as follows: "The prisoner was in my custody before the Newbury Borough Sessions, in October, 1837; I sent him to Newbury at that time; I was not at the trial, but I received him back with an order

from the Newbury Sessions; and he remained in my custody for four months under that sentence." This was held sufficient.

43 Kilbourn v. State, 9 Conn. 560, 563; People v. Cook, 45 Hun (N. Y.) 34, 37; 1 Bish. Cr. Law, § 961.