
    People v. Trimble.
    
      (Supreme Court, General Term, Fifth Department.
    
    June, 1891.)
    1. Criminal Law — Appeal—Reversal—Plea of Former Conviction — Entering Judgment on Verdict against Defendant.
    Code Crim. Proc. N. Y. § 471, provides that, “after verdict against the defendant on a plea of a former conviction, * * * the court must appoint a time for pronouncing judgment, ” which time (section 472) “must be at least two days after the verdict, * * * but any delay may be waived by defendant. ” A verdict was rendered against defendant on his plea of former conviction, but the court, without entering any formal judgment thereon, allowed defendant to plead anew to the indictment, and fixed a day for the trial of his new plea, without objection on his part. Held, that the deviation from the provision of the statute being without objection on the part of defendant, and not to his prejudice, was not error sufficient to justifiy a reversal of a judgment of conviction on the second trial.
    2. Same—Trial by New Jury.
    In such case, defendant having at the first trial pleaded the defense of “former conviction” only, it was plainly not within the intent of sections471 and 472 that the first jury should not be discharged, and that both issues should be tried by the same jury.
    Appeal from,court of sessions, Niagara county.
    Indictment against William Trimble for larceny in the first degree. Defendant pleaded a former conviction, and the jury rendered a verdict “for the people.” The court then allowed defendant to file a plea of “not guilty” to the indictment, and fixed a day for the trial of defendant on that plea, which, was thereafter had, and from a judgment of conviction then rendered defendant appeals. Code Crim. Proc. N. Y. §471, provides: “After a verdict against the defendant on a plea of a former conviction or acquittal, if the judgment be not arrested or a new trial be granted, the court must appoint a time for pronouncing judgment.” Section 472 provides that “the time appointed must be at least two days after the verdict if the court intend to remain in session so long, * * * but any delay may be waived by the defendant.”
    Argued before Dwight, P. J., and Macomber, J.
    
    R. Crowley, for appellant. P. F. King, for respondent.
   Dwight, P. J.

The indictment was found in the oyer and terminer, and the defendant, being arraigned in that court, pleaded only a former conviction of the crime charged. Code Crim. Proc. § 332. The case was then sent to the court of sessions, where the sole issue joined, as above, was tried by a jury, and a verdict was rendered “for the people.” This was, by definition of the Code of Criminal Procedure, a general verdict, (section 437,) and, under the provisions of sections 453 and 471 of the same statute, it was the duty of the court thereupon to appoint a time for, and at such time to pronounce judgment upon, the defendant. What judgment was to be pronounced in such case is not expressly provided. The two general verdicts of “guilty,” after a trial of the general issue, and “for the people,” after a trial of the issue of a former conviction or acquittal, are placed in the same category in all the provisions of the statute cited. The same proceedings leading up to judgment are prescribed in botli eases, and there is no indication in the statute that the judgment to be pronounced in the one case is different from that in the other. But this is evidently a casus omissus. It was never the law that the plea of a former conviction or acquittal was, in ease of a felony, an admission of the facts charged in the indictment, except for the purposes of the trial of the issue actually joined, and to the effect that, upon the trial of that issue,-no evidence need be given by the prosecution in support of the allegations of the indictment. At common law, in case of a felony, the judgment against the defendant on such a plea was respondeat ouster, let him answer over, or plead again, (People v. Saunders, 4 Parker, Crim. R. 198, and cases cited; l Arch. Crim. Pr. Wat. Ed. p. 371;) and, unless the new plea was of guilty, he was put upon his trial on the merits. Such was, substantially, the course pursued in this case. Ho formal judgment to that effect was pronounced, but tlie defendant was allowed to plead anew to the indictment. His plea of not guilty was received, a day was fixed for the trial of the issue newly joined, and such trial was had before another jury at the time appointed, and all this was without objection on the part of the defendant. Objection is now made in Iiis behalf that the first jury should not have been discharged, but that both'issues should have been tried by the same jury. It is evident that such is not the intention of the statute in case the two pleas are separately interposed. Indeed, if the defendant had insisted upon a strict compliance with the statute, at least two days must have intervened between the rendition of the first verdict and judgment thereon, (section 472,) which must have preceded the trial of the new issue. Although the provisions of the statute were not strictly complied with, the deviation was without objection on the part of the defendant, and was not to his prejudice. He had the full benefit of a judgment of respondeat ouster, and of a separatejrial of both the issues joined by his successive pleas. An exception taken by the defendant on the trial of the preliminary issue raised the question whether the people were required, on that trial, to give evidence tending to establish the guilt of the defendant. The ruling to the contrary was clearly correct. The general issue is not raised by plea of a former conviction or acquittal, and the affirmative is with the defendant on the issue actually made. Abb. Tr. Brief Grim. Causes, § 742, and cases cited. The defendant’s motion in arrest of judgment was based upon the ground, already sufficiently considered, of the want of a formal judgment on the preliminary issue, and on the ground of the insufficiency of the evidence to warrant the verdict against the defendant on the general issue. We have very carefully read and considered the evidence contained in the record, and, although we find it wholly circumstantial in character, we regard it as raising a very strong presumption of the guilt of the defendant, and as making a case in which the jury might well have found their minds free from reasonable doubt on that subject. We think the motion in arrest of judgment was properly denied on both the grounds assigned. Hone of the exceptions taken by the defendant to rulings on questions of evidence are argued on this appeal, and we find none which seem to require discussion.

An objection is made on the argument here that the sentence of the court was void and illegal under section 697 of the Penal Code, which prescribes that the term of imprisonment shall be so limited as that, with due allowance for probable commutation for good behavior, it shall expire between the months of March and Hovember. It is conceded that the first sentence imposed in this case, which was for five years, was subject to this objection; but it was corrected by the court on its own motion, and at the same term. This it was competent for the court to do. Miller v. Finkle, 1 Parker, Crim. R. 374. The mistake in the first sentence did not vitiate the judgment, and it was the duty of the court to correct the error, as it did. The second sentence, (of five years and four months,) passed June 28,1891), by counsel’s own computation, was strictly in accordance with the direction of the statute, since it would expire on the 4th day of April, 1894. There seems to be no other question in the case which requires attention. The judgment appealed from should be affirmed.

Judgment and conviction appealed from affirmed, and the case remitted to the court of sessions of Hiagara county to proceed thereon.  