These statutes, it will be observed, are highly penal in their character, and their application ought not to be extended to cases which do not, by the strictest rules of construction, come under their provisions. It is clear that they were intended by the legislature to prevent the repetition of crime by the same persons by imposing increased penalties upon old offenders, and inflicting a severer punishment upon the repetition of certain crimes.2 The purpose of all these statutes is the very laudable one of reforming offenders by grading the punishment for crime in such a manner that a person who has once offended against the law, and who has been convicted and punished for his crime, will be deterred from a repetition of his act by the fear of an enhanced punishment for a future crime. After the conviction of the earlier offense, the offender is given a period for amendment and reformation, and to enable him, if he will, to return to the paths of rectitude and usefulness. If he shall fail to profit by this opportunity for his moral rehabilitation and shall continue in his criminal career, he is presumed to be incorrigible, and the law demands that he shall be permanently secluded from association with other persons that they may not be contaminated by his pernicious example. § 507. Constitutionality of legislation punishing habitual criminals. The statutes enhancing the punishment upon a subsequent conviction are not open to the objection that they are er post facto laws, or in the nature of such laws, or that they are in any sense retrospective in their action. Nor can they, with before sentenced to a like punishment 2 Ex (Mass.) 40, 42. 3 3 (Mass.) 165, 170; Ex parte Gutierrez, 45 Cal. 429; Com. v. Graves, 155 Mass. 163, 165, 29 N. E. 579, 16 L R. A. 256; Sturtevant v. Com., 158 Mass. 598, 600, 33 N. E. 648; Blackburn v. State, 50 Ohio St. 428, 438, 36 N. E. 18; Commonwealth v. Getchell, 16 Pick. (Mass.) 452, 453: Kinney v. State, 45 Tex. Cr. 500, 78 14 Pick. S. W. 226, reversed in 79 S. W. 570; Commonwealth v. Phillips, II Pick. (Mass.) 28; Herndon v. Commonwealth, 105 Ky. 197, 48 S. W. 989, 20 Ky. L. 1114, 88 Am. St. 303; White Rand v. Commonwealth, 9 Gratt. (Va.) 738; People v. Raymond, 96 N. Y. 38, 40; Ross' Case, 2 Pick. justice, be regarded as inflicting or imposing a double punishment for the one offense, or as inflictiug a cruel or unusual punishment, or as putting the accused twice in jeopardy for the same offense.® 5 v. Commonwealth (Ky.), 50 S. W. 678, 20 Ky. L. 1942; Whorton v. Commonwealth, 7 Ky. L. 826; McDonald v. Massachusetts, 180 U. S. 311, 313, 45 L. ed. 542, 21 S. Ct. 389; People v. Craig, 195 N. Y. 190, 193, 88 N. E. 38, reversing 60 Misc. (N. Y.) 529, 112 N. Y. S. 781. 'People v. McCarthy, 45 How. Pr. (N. Y.) 97; Chenowith v. Commonwealth (Ky.), 12 S. W. 585, 11 Ky. L. 561; People v. Raymond, 96 N. Y. 38, 40; Maguire v. State, 47 Md. 485, 497; Blackburn v. State, 50 Ohio St. 428, 438, 36 N. E. 18; Rand v. Commonwealth, 9 Gratt. (Va.) 738, 743; People v. Stanley, 47 Cal. 113, 116, 17 Am. 401; Ingalls v. State, 48 Wis. 647, 4 N. W. 785; State v. Austin, 113 Mo. 538, 21 S. W. 31; Johnson v. People, 55 N. Y. 512; Kelly v. People, 115 Ill. 583, 4 N. E. 644, 56 Am. 184; People v. Bosworth, 64 Hun (N. Y.) 72, 19 N. Y. S. 114; Commonwealth v. Marchand, 155 Mass. 8, 9, 29 N. E. 578; Commonwealth v. Hughes, 133 Mass. 496, 497; Riley's Case, 2 Pick. (Mass.) 172; Hopkins v. Commonwealth, 3 Metc. (Mass.) 460, 467; State v. Benson, 28 Minn. 424, 425, 10 N. W. 471; Plumbly v. Commonwealth, 2 Metc. (Mass.) 413, 415; State v. Austin, 113 Mo. 538, 21 S. W. 31. "Moore v. Missouri, 159 U. S. 673, 677, 40 L. ed. 301, 16 Sup. Ct. 179; State v. Hodgson, 66 Vt. 134, 157, 28 Atl. 1089; People v. Stanley, 47 Cal. 113, 117, 17 Am. 401; Borck v. State (Ala. 1905), 39 So. 580; In re, Finley, Cal. App. 198, 81 Pac. 1041; State v. Dowden, 137 Iowa 573, 115 N. W. 211. "Moore v. Missouri, 159 U. S. 673, 677, 40 L. ed. 301, 16 Sup. Ct. 179; affirming Pace v. Alabama, 106 U. S. 583, 27 L. ed. 207, 1 Sup. Ct. 637; and Leeper v. Texas, 139 U. S. 462, 468, 35 L. ed. 225, 11 S. Ct. 577; Kelly v. People, 115 Ill. 583, 4 N. E. 644, 56 Am. 184; Ingalls v. State, 48 Wis. 647, 658, 4 N. W. 785; People v. Lewis, 64 Cal. 401, I Pac. 490. In Rand v. Commonwealth, 9 Gratt. (Va.) 738, People v. Stanley, 47 Cal. 113, 17 Am. 401; McDonald v. Commonwealth, 173 Mass. 322, 53 N. E. 874, 73 Am. St. 293; State v. Hodgson, 66 Vt. 134, 28 Atl. 1089, on page 743, the court says: "No constitutional or other obstacle, however, seems to stand in the way of the legislature's passing an act declaring that persons thereafter convicted of certain offenses committed after the passage of the act, may, if shown to have committed like offenses before, be subjected to greater punishment than that prescribed for those whose previous course in life does not indicate so great a degree of moral depravity. One convicted under such a statute cannot justly complain that his former transgressions have been brought up in judgment against him. He knew, or is presumed to have known, before the commission of the second offense, all the penalties denounced against it; and if, in some sense, the additional punishment may be said to be a consequence of the first offense (inasmuch as there could § 508. Conviction of the former crime must have been prior to the commission of the crime now being tried.-Many of the statutes regulating the punishment of habitual criminals expressly declare that it must appear in evidence that the subsequent crime was committed after the date of the prior conviction of the accused. This rule requiring it to be proved that the conviction of the earlier crime antedates the commission of the latter offense for which the accused is now on trial would doubtless apply even where the statute is silent on this point, as otherwise the offender would have had no opportunity to reform because of the salutary discipline of the punishment which he has received as a consequence of the first conviction." The infliction of the increased punishment is a consequence of the failure to reform on the part of the accused after his earlier punishment. Hence, if the latter crime has been committed prior to the conviction, it is no proof whatever that the sentence and punishment under such conviction had failed in their reformatory effect upon the accused. be no sentence for such punishment in the absence of proof of the first conviction), still it is not a necessary consequence, but one which could only arise on the conviction for the second offense, and one therefore, which being fully apprised of in advance, the offender was left free to brave or avoid." In construing such a statute the court, in Commonwealth v. Graves, 155 Mass. 163, 165, 29 N. E. 579, 16 L. R. A. 256, said: "It is prospective and not retrospective. It deals with offenders for offenses committed after its passage, but it provides that, in considering the nature of an offense and the condition into which the offender is brought by it, his previous conduct may be regarded. * * * It is not unconstitutional as an ex post facto law. In punishing offenses committed after its passage, it punishes the offenders for a criminal habit whose existence cannot be proved without showing their volun-. tary criminal act done after they are presumed to have had knowledge of the statute. Such an act is a manifestation of the habit, which tends to establish and confirm it, and for which the wrongdoer may well be held responsible." 'Long v. State, 36 Tex. 6; People v. Butler, 3 Cow. (N. Y.) 3471 Brown v. Commonwealth, 100 Ky 127, 37 S. W. 496, 18 Ky. L. 630; Brown v. Commonwealth (Ky.), 61 S. W. 4, 22 Ky. L. 1582; Rand v. Commonwealth, 9 Gratt. (Va.) 738; Commonwealth v. Welsh, 2 Va. Cas. 57, 105 Am. St. 983, note; Sharp v. Commonwealth (Ky., 1909); 124 S. W. 316. In Rand v. Commonwealth, 9 Gratt. (Va.) 738, 746-748, the court says: "The statute intended that conviction should precede the second offense; that the mischief was a want of reformation by the first punishment, and that the previous convic § 509. Effect of pardon of former crime in excluding proof of prior conviction. Whether the fact that the accused has been pardoned for the prior crime will prevent a conviction of it from being considered in enhancing the punishment for the subsequent one has been differently determined. Usually the statute expressly provides that the increased penalty shall be imposed irrespective of the mode in which the accused has procured his discharge from his previous imprisonment. In one case, however, where the statute was silent, it was held that, as a pardon relieved the offender of all the consequences of his crime, one of which was his liability under the statute to receive an additional punishment in case of a subsequent conviction, the prior conviction was immaterial." But elsewhere it has been held that a pardon cannot be prospective in its operation, so as to operate to relieve an offender from the consequences of a future infraction of the criminal law. The increased punishment is not one of the consequences of the former crime from which the pardon relieves the prisoner, but grows out of and is the result of his failure to reform prior to the latter offense, upon which the pardon for an earlier crime cannot legally operate.10 § 510. Setting out the former conviction in the indictment-Variance. The commission of the former crime by the accused, its nature, and the date of its commission, together with the fact and date of his conviction and sentence, must be set forth at length in the indictment or information. This is absolutely tion was required as evidence that the mild correction for one offense had failed of its effect; that the legislature intended that the culprit should first hear the monitory voice of the law before the heavier doom should be announced." 9 Edwards V. Commonwealth, 78 Va. 39, 49 Am. 377; State v. Martin, 59 Ohio St. 212, 52 N. E. 188, 69 Am. St. 762, 43 L. R. A. 94. 10 Mount v. Commonwealth, 2 Duv. (Ky.) 93; Williams v. People 196 Ill. 173, 63 N. E. 681; Herndon v. Com 11 monwealth, 105 Ky. 197, 48 S. W. 989, 20 Ky. L. 1114, 88 Am. St. 303; State v. Manicke, 139 Mo. 545, 41 S. W. 223; People v. Price, 53 Hun (N. Y.) 185, 6 N. Y. S. 833 11 Evans v. State, 150 Ind. 651, 50 N. E. 820; People v. Sickles, 156 N. Y. 541; 57 N. E. 288, affirming 26 App. Div. (N. Y.) 470, 472, 50 N. Y. S. 377; People v. Price, 119 N. Y. 650, 23 N. E. 1149; People v. Craig, 195 N. Y. 190, 194, 88 N. E. 38; Wood v. People, 53 N. Y. 511; State v. Markuson, 7 N. Dak. 155, 73 N. W. 82. essential in order that the accused may be properly informed of the nature of the allegations against him and that he may thus be enabled to prepare his evidence to confute and disprove them.12 It is not necessary to set forth in the indictment the entire record of the former trial and conviction. 13 It is enough if the place and the nature of the crime are stated clearly, and the details of the conviction and sentence, including the date, are given with such precision as will enable the court to determine whether or no the case is within the statute.14 In case several prior convictions are alleged in the indictment it is no variance if only one is proved.15 § 511. Effect of plea of not guilty.-Where a prior conviction is alleged in the indictment, a plea of not guilty generally puts the fact of prior conviction in issue, as well as the commission of the subsequent crime.16 If the accused, while pleading not guilty, voluntarily confesses a former conviction as laid, it is enough, and the jury may accept his admission as conclusive." But when the accused, on his arraignment, pleads not guilty merely, and says nothing as to his prior conviction, he cannot be asked on arraignment if he has been previously convicted of crime.18 § 512. Order of trying the issue of prior conviction.-Where the accused pleads not guilty generally and an indictment, containing an allegation of his former conviction, is read to the jurors. 12 Maguire v. State, 47 Md. 485, 496; Plumbly v. Commonwealth, 2 Metc. (Mass.) 413. The general rule is that the indictment must contain an averment of every fact necessary to justify the infliction of the proper punishment. 13 Commonwealth, Pick. (Mass.) 40, 42; Ex parte Dick, 14 Pick. (Mass.) 86, 88. 10 People v. Carlton, 57 Cal. 559; People v. Lewis, 64 Cal. 401, 1 Pac. 490; People v. Gutierrez, 74 Cal. 81. 83, 15 Pac. 444; Ex parte Young Ah Gow, 73 Cal. 438, 442, 445, 15 Pac. 2 76; Hines v. State, 26 Ga. 614. Contra Thomas v. Commonwealth, 22 Gratt. Plumbly v. 15 Reg. v. Clark, 6 Cox C. C. 210. Where proof of a conviction for a term of years is required, proof of a conviction for at least two years must be proved. Ex parte Seymour, 14 "Ex parte Young Ah Gow, 73 Cal. 438, 15 Pac. 76. 18 Ex parte Young Ah Gow, 73 Cal. 438, 446, 15 Pac. 76; People v. King. 64 Cal. 338, 30 Pac. 1028. |