
    The People against Youngs.
    The first section of the 'act “regulating certain proceedings in crimi./al cases,” does not extend to collateral issues. On such, if the prisoner stand mute, the court will enter a plea for him. On collateral issues no peremptory challenge. General sessions has no jurisdiction on indictments for a second offence in committing grand larceny. Indictments for second offences, where the punishment is increased, must set forth the record of the former conviction. Prisoner tried at general sessions for grand larceny and brought up here, on suggestion of its being second offence, this court will give no other judgment than the court below might have pronounced.
    The defendant had been convicted of grand larceny, before the court of general sessions, at Albany, in February last, and was brought up to receive sentence of imprisonment for life under the act of 21st March, 1801, c. 58, s. 4, -as being his second offence.
    The indictment under which he was now brought up did not set forth the record of the former conviction; but instead of it a suggestion, in the nature of a counterplea, had been entered against the prisoner in the following words: “And Ambrose Spencer, who prosecutes for the people of the state of New-York in this behalf, having heard Thomas Youngs, who stands convicted at a court of general sessions of the peace holden at Albany, in and for the county of Albany, on the seventeenth clay of February last past, of feloniously and with force and arms stealing, taking and conveying away, at the city of Albany in the county of Albany, on the sixteenth day of February last past, one cotton, &c., (specifying the -articles and their value,) of the goods and chattels of Edward Griswold, being asked by the court now here what he had to say for himself why judgment should not be passed against him agreeable to law, saith that the said Thomas Youngs ought to receive the sentence and judgment of the court now here to be imprisoned in the state prison, for life, and there to be kept at hard labor, because he says that the said Thomas Youngs, by the name of Thomas Young, hereto fore, and before the said felony was committed in mannei and form aforesaid, to wit, at a supreme court of judicature held at the city-hall of Albany, in and for the state of New-York, on Saturday, the twenty-eighth day of April, in the year of our Lord 1798, before John Lansing, Esq., Chief Justice of the said supreme court of judicature, Morgan Lewis, Egbert Benson, and James Kent, Esquires, puisne justices of the said supreme court of judicature, was convicted on his plea of not guilty to an indictment for grand larceny, for feloniously, and with force and arms, stealing, taking and carrying away, &c., of the goods and [*38] chattels *of one John Wright, and thereupon it was considered and adjudged by the said court last mentioned, that the said Thomas Young be confined in the state prison in the city and county of New-York, at hard labor for two years, and this he the said Ambrose Spencer is ready to verify and prove by the record thereof; and the said Ambrose Spencer further saith, that he the said Thomas Youngs, who now stands convicted at the said court of general sessions of the peace, holden at Albany, in and for the county of Albany aforesaid, in manner and form aforesaid, is the same person who was so convicted at the said supreme court of judicature, holden at the city-hall of Albany, in and for the state of New-York, in manner and form aforesaid, and is not any other or different person. Wherefore, since the said Thomas Young hath already been duly convicted of the crime of grand larceny, committed since the said first conviction, the said Ambrose Spencer, for the people of the state of Npw-York, prays the judgment of the court here, that the said Thomas Youngs may receive judgment to be imprisoned in the state prison, in the city of New-York, at hard labor, or in solitude, or both, for life.”
    
      Spencer Attorney-General,
    
    prayed that the prisoner might be put to plead his identity, and, in case of his denying that he was the same person, that a jury might be summoned instante.r to try the fact. This he contended was the right mode of proceeding, and for that he cited The King v. Scott and another, 1 Leach, 445.
    To a question from the court, whether the prisoner wished for counsel, on being answered in the affirmative, they assigned to him Hoffman and Colden, who requested time to prepare themselves, which, the case being new, was granted.
    On the prisoner’s being brought up the next day, by advice of his counsel he stood mute. They insisting that as the punishment of peine forte was expressly abolished, and the first section of the law of 21st March, 1801, c. 60, applied only to cases of arraignment, the present was a casus omissis, in which the court had no power.
    After some consultation on the bench, the court ordered the following plea to be entered: ■
    *“ That he is not the person alleged by the Attor- [*39] ney-General in his plea to have been formerly convicted of grand larceny.”
    Reserving to the prisoner a right to object to the mode of proceeding, and take advantage of any irregularity that might appear. His counsel then stated they meant to contend that the proceedings, not setting forth the record of the former conviction, were erroneous, and the court would not pronounce the judgment prayed for.
    
      Spencer, Attorney-General.
    
    The identity of person and former conviction are circumstances collateral to the offence itself: they do not constitute a part of the crime, and therefore may be pleaded and replied to ore tenus, and a venire awarded returnable instanter, in the nature of an inquest of office. This is the constant practice in cases where it is doubtful whether a criminal be a lunatic or not; so, by analogy, the same mode should now be adopted, especially as it is a matter in which the court may exercise its discretion. 1 Hawk. 4, b. 1, c. 1, s. 4, n. (5). Fost, 46, 47. In Great Britain, when a prisoner is to be ousted of his clergy, the suggestion of his former offence is by way of counterplea, and the indictment never takes notice of the previous conviction. 4 Hawk. 254, b. 2, c. 33, s. 19, n. The only mode of trying whether he has before bad his clergy is by the certificate prescribed under the 8 and 4 W. & M., c. 9, s. 7. The King v. Scott and another, 1 Leach, 445. If the section cited .from the statute of W. & M. be compared with the second section of onr state law of 14th of April, 1801, c. 146, 1 Eev. Laws of N. Y., 462, 463, the certificate ordered by our provisions will be found perfectly analogous to that required by the 3 and 4 W. & M. The first offence is 'grand larceny, punished in a certain manner; the second offence is the -same, with a greater punishment. In England, the second conviction is not availed of in the indictment; hut when the prisoner claims the benefit of his clergy, it is counterpleaded. This makes a perfect analogy. His identity may be tried by a jury of his country, with the aid -of counsel and the right to challenge, at which time he may controvert his former conviction and indictment. Therefore, on principle, it is not necessary to connect the first with the second offence, as the repetition is nó part of the crime, but collateral [*40] and only incidental to his guilt. All *facts that dp not enter into the crime, but are mere circumstances are to be inquired of in this way. The books of precedent are silent as to the practice insisted on, and that is an argument for the present mode; the form of the counterplea is warranted by Dogharty.
    
      Golden and Hoffman, for the prisoner.
    There is no analogy between the present case and those which have been cited. It is not denied that to oust of clergy the mode is by counterplea. The present suggestion cannot be spoken of as being of the nature of counterpleas; these are so called because counter to what is pleaded, or claimed by the prisoner after his conviction, when he demands the benefit of his clergy. To the plea which the prisoner has put in, to do away the force of the sentence, the attorney-general interposes his counterplea; but he cannot, after trial, suggest any new matter. If the crime was as is stated in the counterplea, or suggestion, the court below had no jurisdiction of the offence. Justices of the sessions are ousted of that both by the common law and express words of our state act of the 21st March, 1801, s. 1, Rev. Laws of N. Y., vol. 1, p. 302. The statute, after giving the justices a right to inquire of all offences, &c,, and going on to confer on them a right to hear offences of grand larceny, has the following proviso: “ Provided always, that it shall not be lawful for any of the said courts to hear and determine any indictment of, or for any treason, misprision of treason, murder, or other felony or crime, which is or shall be punishable with death, or with imprisonment in the state prison for life, but shall cause the indictments for the same to be delivered to the next supreme court, or court of oyer and terminer or gaol delivery, to be held in such city or county, there to be determined according to law.” The question then is, is this a crime punishable with imprisonment for life or not? Is not this apparent on the record? If so, it is conclusive as to the jurisdiction. The court will recollect that the law referred to was passed with a direct view of restraining the justices in sessions from exercising any authority where the punishment was so severe. The legislature viewed them as a subordinate tribunal, and therefore delegated inferior powers according to the confidence entertained. The practice on the present occasion is not such as has been formerly used; the mode heretofore adopted has been to make the first offence a charge *in the indictment for the second, and as this has [*41] been the line of conduct in this country, it may be considered as a cotemporaneous exposition of our law. [t is asserted that, though this method might be taken, it is only matter of form; it is a matter of form, however, which gives a jurisdiction the legislature has taken away. It is form in one point of view, in another not. This kind of alteration in criminal proceedings is not allowable. It is necessary that the previous offence should be made a substantive charge in the indictment for a second, where the punishment is augmented by the repetition, because the repetition is the crime. Eeason tells us the second offence must be after a conviction for the first, for it is on a presumption of the first punishment’s not having induced a reformation, that the second is increased. 1 Hawk. 306, b. 1, c. 40, s. 4. 1 Hale’s P. 0. 685. Fleming's Case, 1 Leon. 295. Taverner's Case, 3 Dyer, 323. The distinction between clergyable cases and the present is this: whether clergy has been allowed or not is not traversable, but here the nature of the crime is changed by a superadded fact ; the party, therefore, must have an opportunity to traverse. The time at which the second offence was committed is of the .essence of the crime. The counterplea is no evidence that the subsequent felony was after the 16th February, nor is any issue tendered of that fact. It ought to have been formally offered. .
    The necessity of such an issue will be more evident on recurring to s. 4 of the law declaring what crimes are punishable with death or imprisonment for life :■ the second offence must be after such first conviction; if it be a question, then, whether the second offence was committed after the first conviction, it is a fact not inquirable here, but by a jury. Before them, for an offence subjecting to the punishment now asked, the prisoner is entitled to a peremptory challenge of twenty ; this right by the present mode is taken away; for on a collateral issue it cannot be exercised. Radcliff's Case, Fost. 42. Dogharty is a precedent in point, and in the very one adduced by Mr. Attorney, the former conviction is set forth.
    
      Spencer, Attorney-General,
    
    insisted on his former arguments, and that this was properly a counterplea; because, when the prisoner is asked what he has to say why more than *fourteen years’ imprisonment should [*42] not be awarded, he must allege the conviction to be on his first offence: this is his plea; then the suggestion read is the counterplea. The practice relied on has not antiquity enough to establish it, and the distinction between taking away clergy, and augmenting the punishment, amounts to the same thing, for they both vary the sentence. The idea under which the proceedings have been Carried on is, that the trial might be below, and the judgment here.
    
      
      а) 21st March, 1801, ch, 58, 1 Rev. Laws of N. Y., 254.
    
    
      
       21st March, 1801, c. 60, s. 9, 1 Rev. Laws of N. Y., 261.
    
   Per Curiam.

The prisoner was convicted .at a court of general sessions of the peace, held in and for the city and county of Albany, of a grand larceny.' The record of his conviction is removed into this court, on.which a suggestion is entered that he had heretofore been convicted of a similar offence. On this the public prosecutor has moved for judgment of commitment to the stale prison for life, according to the act in such case made and provided, or that the prisoner take issue on such suggestion. The court, doubting of the regularity of this mode of proceeding, assigned counsel. The point has been. ably argued, and they are now to give their judgment.

From the authorities and precedents that have been laid before us, there can be little doubt, that in England, when a prisoner prays his benefit of clergy, and the question is, whether it hath not been on another occasion extended to him, this is the mode (under the appellation of a counter-plea) that is generally pursued. In cases, however, where the first offence forms an' ingredient in • the second, and becomes a part of it, such first offence is invariably set forth in the indictment for the second.

A similitude is said to exist between the prayer of clergy in England, and a denial of a former conviction with us, and that therefore the same mode of proceeding is equally correct in the one case as in the other. But on strict examination, there will be found to exist no analogy between them, and that we cannot adopt the same mode of proceeding without depriving the prisoner of an important privilege secured to him by statute.

It is true that much inconvenience may, and probably will, arise from this decision. Eew convictions for second offences will be likely to take place: but the remedy [*43] lies not within *our reach. By a statute of this state every person who shall be indicted for an offence, the punishment whereof shall be, on conviction, confinement for life in the state prison, is entitled, when put on his trial, peremptorily to challenge twenty of his jurors. The form of proceeding now contended for would effectually deprive the prisoner of this right. It is no answer , to this objection to say, his right of challenge may, on the trial of this collateral question, be extended to him, even should it be proper to allow it him on such occasions. He is entitled to it when tried for the principal felony, and had he not been deprived of it, might have been acquitted. Another objection, and a strong one, arises from the circumstance of his conviction having taken place before a court of sessions. The statute declaring the powers of justices of sessions expressly prohibits them from trying indictments where the punishment on conviction is confinement for life. Had it appeared, then, from the indictment that he was to be put upon his trial for a second offence, a plea to the jurisdiction would have tied up the hands of such court, and have carried his cause for trial to a tribunal that could have extended to him all his rights.

We are of opinion this court can give no other judgment ;A the case than such as the sessions might have done, which exceeds not the punishment of fourteen years’ confinement.

Sentence for five years.  