
    People v. Price.
    
      (Supreme Court, General Term, Third Department.
    
    July 6, 1889.)
    1. Pardon—Second Conviction—Additional Penalty.
    . The penalty as for a second offense prescribed by Pen. Code N. Y. § 688, on the-conviction for certain offenses of one who had previously been convicted in this or another state on a similar charge, cannot be avoided by showing that defendant was fully pardoned after such previous conviction in another state.
    2. Juey—Challenge for Cause—Waiver.
    Where defendant peremptorily challenged a juror, after having excepted to a ruling of the court in not excluding him, as disqualified, he is presumed to waive the exception, and is not injured if he has sufficient peremptory challenges to subsequently exclude him and all other objectionable jurors.
    Appeal from court of oyer and terminer, Albany county.
    John Price was indicted for grand larceny in the first degree, charged as a second offense, under Pen. Code 21. Y. § 688, which reads as follows: “A person who, after having been convicted within this state of a felony, or an attempt to commit a felony, or of petit larceny, or under the laws of any other state, government, or country, of a crime which, if committed within this state, would be a felony, commits any crime within this state, is punishable upon conviction of such second offense as follows: (1) If the subsequent crime is such that upon a first conviction the offender might be punished, in the discretion of the court, by imprisonment for life, he must he sentenced to imprisonment in a state-prison for life. (2) If the subsequent crime
    
      such that upon a first conviction the offender would be punishable by imprisonment for any term less than his natural life, then such person must be sentenced to imprisonment for a term not less than the longest term, nor more than twice the longest term, prescribed upon a first conviction.” The indictment charged him with having stolen from one Peter K. Dedrick, in the city of Albany, on the 30th day of July, 1888, 35 bonds, of the value of $1,000 each, made by the Equitable Mortgage Company of Kansas City; and that in 1884 he was duly convicted of a felony in Richmond county, in the state of Georgia, namely, larceny of $2,500 from the Rational Bank of Augusta, in that state. The testimony tended to show that on the 30th of July, 1888, at about half past 10 o’clock in the forenoon, Aaron Dedrick, acting for his brother, Peter K. Dedrick, went to the Mechanics’ & Farmers’ Bank, on the corner of State and James streets, in Albany, and received 35 bonds executed by the Equitable Mortgage Company of Kansas City of the value of $85,000, of which bonds Peter K. Dedrick was the owner. Aaron Dedrick wrapped them in a paper, put two rubber bands around the package, and, holding the package in his hand, went out onto State street, turned into James street, and walked north on the east side of James street 120 feet to his one-horse buggy, which he had left there, the horse’s head facing north. He laid the package of bonds on the buggy-seat, and was putting on his coat while standing on the edge of the sidewalk, facing the buggy, when defendant passed on the walk behind him, and remarked, “How are you, Doctor?” Dedrick, without turning around, supposing that defendant had made a mistake, replied, “How are you.” The defendant passed on to the horse’s head, and said, “Has that horse got the glanders?” Dedrick replied, “I guess not,” and turned to see who it was. Defendant then pointed towards or touched the horse’s nose, and said, “There, there; the glanders,” and moved on towards the north. Dedrick turned to look at his package of bonds, and it was gone. As Dedrick laid his package on the buggy-seat he casually observed two or three persons between him and the corner of State street, but when he missed his bonds he saw no one in that direction. He saw no one take them. He recalled an impression as of a shadow of some one near him when defendant was speaking, but he did not see any one whom he could suppose had taken the bonds. His horse had no symptoms of the glanders. Defendant had been in Albany for two or three days before the theft; had registered at the Kenmore Hotel under the name of “W. H. Hall.” Two other strangers had been at the hotel at the same time. The defendant was on State street near the Mechanics’ & Farmers’ bank about half past 10, in company with two strangers. Evidence was given tending to show that the strangers seen in company with defendant on State street were the same who had been at the Kenmore Hotel. The defendant immediately after the theft was seen on Pearl street, going towards the Kenmore Hotel. Shortly after the theft the two strangers hired a hack for five dollars, and left the Kenmore Hotel, and were driven to Troy. The defendant was arrested in Troy the same afternoon, and gave an account of himself which was in the main false. The bonds were not recovered, and the two strangers were not found. The people read the record of the defendant’s conviction in Georgia under the name of O. H. Clifford. The defendant read in evidence his full pardon granted by the governor of that state. Defendant was convicted of the offense charged, and from the judgment thereon appeals.
    Argued before Learned, P. J., and Landon and Ingalls, JJ.
    
      Peter Mitchell, for appellant. Hugh Reilly, for the People.
   Landon, J.

The trial court refused to hold that the pardon granted the defendant by the governor-of the state of Georgia exempted him from liability to conviction here as for a second offense. The court held that the pardon did not disprove the fact of conviction in the state of Georgia, but was

consistent with it, and hence the defendant might be lawfully convicted under section 688 of our Penal Code, notwithstanding the pardon. The question does not appear to have been decided in this state. The defendant relies upon the principles announced in Ex parte Garland, 4 Wall. 380. The court there held that “a pardon reaches both the punishment prescribed for the offense and the guilt of the offender; and when the pardon is full it releases the punishment, and blots out of existence the guilt, so that in the eye of the law the offender is as innocent as if he had never committed the offense.” This broad doctrine is reiterated in subsequent cases. U. S. v. Padelford, 9 Wall. 531; Carlisle v. U. S., 16 Wall. 147; Osborn v. U. S., 91 U. S. 478. Of course past acts cannot be obliterated, but the legal effects of them can be. It remains true that the defendant was convicted in the state of Georgia, although subsequently pardoned, and hence it is urged that the defendant still remains in the class described in section 688 of our Penal Code as one “having been convicted under the laws of another state.” Section 692 of the Penal Code provides-that a pardon which shall relieve from a judgment of habitual criminality shall not prevent a subsequent judgment of habitual criminality upon subsequent conviction for felony. This at first seems to be an exception, and to imply that only witli respect to habitual criminals is previous pardon made inoperative; but it is obviously inserted because needed with respect to habitual criminals, but not needed in the cases mentioned in section 688, because there the fact of previous conviction is made descriptive of the renewed offense irrespective of the fact of pardon. The cases cited from the supreme court of the United States hold that since the pardoning power is conferred upon the executive by the constitution it is not within legislative control or restriction, and hence the legislature cannot diminish the full absolution which the pardon imparts. Assuming this to be true, the result would be that the legislature of the state of Georgia could not impair the force of the pardon which, under the constitution of that state, her governor grants. The same reasoning would apply to the legislature of the state of Yew York with respect to a pardon granted by the governor of Yew York, but does not touch the phase of the case here presented. The police power of every state is complete, except as restrained by her own or the federal constitution. Yo constitutional provision restrains the legislative power of Yew York from prescribing that where persons have been convicted for felony in another state, whether subsequently pardoned or not, they shall, upon subsequent conviction of a felony in this state, be more severely punished. That the power exists is clearly inferable from the extent of the police power as defined by the supreme court of the United States. Railroad Co. v. Husen, 95 U. S. 465, 471, and cases there cited; Bowman v. Railway Co., 125 U. S. 465, 492, 8 Sup. Ct. Rep. 689. Our own courts recognized the fact that a moral stigma rests upon a convict notwithstanding his pardon. In re Attorney, 86 N. Y. 563; Eighmy v. People, 78 N. Y. 333. The fact of conviction is a part of his past history. People v. Raymond, 96 N. Y. 41. In none of the cases in the supreme court of the United States was the pardoned person on trial for a second offense. His pardon proved effectual to exempt him from the penalty incurred either under a prior or subsequent law. Here no penalty is incurred for the offense committed in Georgia, but a double penalty is inflicted upon the repetition here of the like offense. We conclude, therefore, that the fact of the defendant’s conviction for a felony under the laws of the state of Georgia was properly alleged and proved, and that the pardon did not exempt him from the increased punishment prescribed for a second offense.

The defendant excepted to the ruling of the court that one Cochrane was not disqualified as a juror. The defendant then peremptorily challenged him. The defendant did not exhaust his peremptory challenges. Thus the defendant, who did not want this person as a juror, was permitted to exclude him,

without the least embarrassment to his liberty of choice and challenge with respect to the other persons called as jurors. Assuming, but not deciding, that Cochrane was disqualified, the defendant was not obliged to challenge him peremptorily, and, i£ he had not, his exception would have been good, within the McQuade Case, 110 N. Y. 284, 18 N. E. Rep. 156; for he could not know that if ne challenged him he might not have to exhaust all his peremptory challenges in setting aside jurors more objectionable than Cochrane, and yet not have enough to exclude them and Cochrane. But he chose to exercise his peremptory challenge, and the result proved that he did have enough peremptory challenges to exclude all the objectionable jurors and Cochrane. He therefore was not injured. People v. Carpenter, 102 N. Y. 243, 6 N. E. Rep. 584.

We have examined the exceptions to the admission of various portions of the testimony, and to the denial of motions to strike out, and find none that we regal'd as well taken. We have read the entire evidence, and we think it was sufficient to warrant the verdict rendered by the jury. The case against the defendant was one of circumstantial evidence; but we have read the evidence, and are satisfied that, although the defendant did not take the package of bonds, he purposely diverted Hedrick’s attention enough to enable a confederate to take them. Judgment affirmed. All concur.  