516
Thomas, J., concurring
Wood v. People, 53 N. Y. 511 (1873). The statute in Wood provided for increased punishment if the defendant had previously been convicted of a felony then discharged from the conviction. The court, repeatedly referring to "the aggravated offence," id., at 513, 515, held that the facts of the prior conviction and of the discharge must be proved to the jury, for "[b]oth enter into and make a part of the offence . . . subjecting the prisoner to the increased punishment." Id., at 513; see ibid. (fact of prior conviction was an "essential ingredient" of the offense). See also Johnson v. People, 55 N. Y. 512, 514 (1874) ("A more severe penalty is denounced by the statute for a second offence; and all the facts to bring the case within the statute must be [alleged in the indictment and] established on the trial"); People v. Sickles, 156 N. Y. 541, 544-545, 51 N. E. 288, 289 (1898) (reaffirming Wood and Johnson and explaining that "the charge is not merely that the prisoner has committed the offense specifically described, but that, as a former convict, his second offense has subjected him to an enhanced penalty").
Contemporaneously with the New York Court of Appeals in Wood and Johnson, state high courts in California and Pennsylvania offered similar explanations for why the fact of a prior conviction is an element. In People v. Delany, 49 Cal. 394 (1874), which involved a statute making petit larceny (normally a misdemeanor) a felony if committed following a prior conviction for petit larceny, the court left no doubt that the fact of the prior conviction was an element of an aggravated crime consisting of petit larceny committed following a prior conviction for petit larceny:
"The particular circumstances of the offense are stated [in the indictment], and consist of the prior convictions and of the facts constituting the last larceny.
. . . . . "[T]he former convictions are made to adhere to and constitute a portion of the aggravated offense." Id., at 395.
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