
    THE PEOPLE OF THE STATE OF NEW YORK, Respondent, v. STEPHEN RAYMOND, Appellant.
    
      Criminal lam — conviction of a second offense — increased punishment provided for hy section 688 of the Penal Code— to what cases it applies.
    
    Under section 688 of tlie Penal Code, providing for tlie punishment of persons convicted of a second offense, any person who has heen convicted of a felony within this State, who thereafter is convicted of the commission of any crime therein, is to he punished as follows: If the second offense is such as that, upon a first conviction of it, he might he punished, in the discretion of the court, hy imprisonment for life, he must he sentenced to imprisonment for life. If the second offense is such as that, upon a first conviction of it, he might he punished hy imprisonment for any term less than his natural life, he must he sentenced to imprisonment for a term not less than the longest term, nor more than twice the longest term, prescribed upon a first conviction. (Davis, P. J., dissendng.)
    As the punishment prescribed hy the said section is only to he inflicted upon those who commit offenses after its passage, it is not void as an ex post facto law, although the punishment is increased hy reason of offenses committed prior to its passage.
    In October, 1883, the defendant was convicted of the crime of forgery in the first degree. It was charged in the indictment and proved that in 1877 he had heen convicted of forgery m the third degree. Under the Revised Statutes the punishment for forgery in the third degree was imprisonment for a term not exceeding five years, and for forgery in the first degree imprisonment for a term not less than ten years. The punishments prescribed hy the Penal Code for these offenses was the same.
    
      Held, that the court had no discretion as to the sentence to he imposed, hut whs hound, hy section 688 of the Penal Code, to sentence the defendant to imprisonment for life. (Davis, P. J., dissenting.)
    
      Appeal from a judgment of tbe Court of General Sessions of tbe city of New York convicting tbe defendant of tbe offense of forgery in tbe first degree, upon which conviction be was sentenced to be-imprisoned in tbe State prison for life.
    
      James Johnston, for tbe appellant.
    
      Peter B. Olney, for tbe respondent.
   Beady, J.:

Tbe defendant was convicted in tbe Court of General Sessions,, in October, 1883, of tbe crime of forgery in tbe first degree, as a second offense, under section 688 of tbe Penal Code. It was charged in tbe indictment that tbe defendant, in March, 1877, pleaded guilty to tbe commission of a felony and was sentenced to five years’ imprisonment. Tbe first offense was forgery in tbe third degree, tbe extreme penalty of which under the Revised Statutes was imprisonment for a period not exceeding five years. (3 R. S. [6th ed.], 946.) Under the Penal Code tbe punishment of forgery in tbe third degree is tbe same. (Sec. 525.) Tbe punishment of forgery in tbe first degree, under tbe Revised Statutes (see page above indicated), was imprisonment in tbe State prison for a term not less than ten years, and it might be for life. Under tbe Code tbe punishment is tbe same. (Sec. 523.) In reference to tbe punishment for a second offense, tbe provisions of 3d Revised Statutes (6th ed., p. 989, § 8) declare that if a person shall be subsequently convicted of an offense, which upon a first conviction would be punishable by imprisonment in tbe State prison for a term exceeding five years, be should be punished by imprisonment in a State prison for a term not less than ten years, and that if tbe subsequent offense be such that upon a first conviction tbe offender-would be punished by imprisonment in a State prison for five-years or any less term, then tbe person convicted should be punished by imprisonment in a State prison for a term not exceeding ten years.

The Penal Code went into effect on tbe 1st of December, 1882. By section 688 it is provided that if tbe subsequent crime is such that upon tbe first conviction the offender might be punished in the discretion of the court by imprisonment for life, be must be-sentenced to imprisonment in tbe State prison for life. And by-.subdivision two, if tbe subsequent crime is such, that upon a first conviction the'offender would be punished 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 appellant upon his conviction was sentenced to imprisonment for life, and the question presented upon this appeal, and indeed it is the only question that requires consideration, is whether the punishment inflicted was justified by existing statutes. The proposition that the Penal Code is ex post facto in reference to the offense of which the appellant was convicted cannot be maintained, though at first blush there seems to be some force in it. But upon reflection it is quite apparent that it has no strength.- The legislature have the right to declare the punishment for a stated offense. They have done so by the Penal Code. It is substantially that if a person who has been convicted within this State of a felony, commits any crime within this State, he is punishable upon conviction of such second offense in the manner indicated; that is to say, if the second offense is such that upon a first conviction of it he might be punished, in the discretion of the court, by imprisonment for life, he must be sentenced to imprisonment in the State prison for life for such subsequent crime. If the appellant, therefore, had been convicted either under the Revised Statutes or under the Penal Code of the offense of forgery in the first degree, inasmuch as he might be punished by imprisonment for life, he must, under the provisions of the Code, be sentenced to imprisonment in the State prison for life. If the section which contains these provisions, namely, section 688, before alluded to, required that the subsequent crime should be similar in degree to the first offense, there might be some reason to declare in this case that as the first offense was one which was not punishable in the discretion of the court by imprisonment for life, the sentence was erroneous. But such is neither the letter nor the spirit of the law, the declaration being, as already suggested, that if any person convicted of a felony within this State commits any crime, then he may be punished as indicated in the section.

There is no imposition of any punishment for the first offense, but an increased punishment for a second offense of a felony, whatever tbat felony may be, if within the provisions of the statute. In other words the statute is substantially this : A person who has been convicted of a felony within this State, who commits any crime within this State, shall be punished as follows: If the second offense is such that upon a first conviction of it he might be punished, in the discretion of the court, by imprisonment for life, he must be sentenced to imprisonment for life. This feature of the statute is a method of regulating and determining the extent of the sentence for the second offense, which is increased when a previous felony is shown to have been committed by the accused. The statute embraces any felony, the design evidently being to punish severely for a second felony, and to declare absolutely the punishment by abrogating the discretion as to the term which might otherwise be designated. In sentencing for the second offense the discretion does not exist therefor.

In the consideration of this question it must not be forgotten that the offense of which the prisoner was convicted was committed after the Penal Code went into effect, and therefore he is not punished under the Code for an act committed before it went into effect. The legislature, in determining what punishment should be-inflicted for the commission of forgery in the first degree, have declared that the maximum shall be imposed in cases where the crime is a second offense though not of the same degree as the first.

Por these reasons we think the judgment should be affirmed.

Daniels, J., concurred; Davis, P. J., dissented.

Judgment affirmed.  