Chenowith v. Commonwealth

• Citation: 12 S.W. 585
• Parties: CHENOWITH v. COMMONWEALTH.
• Decision Date: 12 December 1889
• Court: Court of Appeals of Kentucky

12 S.W. 585

CHENOWITH v. COMMONWEALTH.

Court of Appeals of Kentucky.

December 12, 1889

Appeal from circuit court, Jefferson county.

"Not to be officially reported."

A. A Haggan, for appellant.

P. W Hardin, Atty. Gen., for the Commonwealth.

HOLT J.

The indictment against the appellant, W. B. Chenowith, contains three counts. The first charges him with forgery; the second and third, with previous convictions for felony. The second count was unsustained by testimony. The jury returned this verdict: "We, the jury, find the defendant guilty on the first count of the within indictment, and fix his punishment at five years in the penitentiary; and also find him guilty on the third count of the within indictment, and fix his punishment at six years in the penitentiary; making, in all eleven years' confinement in the state penitentiary." The judgment is for the 11 years. The evidence supported the finding of the jury, and no error is shown by the record during the progress of the trial.

But one material question is presented: Is the judgment correct? The statute provides: "Every person convicted a second time of felony, the punishment of which is confinement in the penitentiary, shall be confined in the penitentiary not less than double the time of the first conviction; and, if convicted a third time of felony, he shall be confined in the penitentiary during his life. Judgment in such cases shall not be given for the increased penalty, unless the jury shall find from record and other competent evidence the fact of former convictions for felony committed by the prisoner, in or out of the state." Gen. St. c. 29, art. 1, § 12. It has been held that this statute is not in violation of the constitutional provision that no one, for the same offense shall be twice put in jeopardy. The increased punishment is not for the former offenses; but the previous convictions merely aggravate the last offense, and add to its punishment. The accused is not required to answer to the former charges, and defend against them. Nothing is heard in reference to the former trials, save the fact of conviction. Mount v. Com., 2 Duv. 93; Taylor v. Com., 3 Ky. Law Rep. 783; Boggs v. Com., 5 S.W. Rep. 307.

A construction of the statute has never been had, however, upon the state of case now presented. In case of a third conviction there is no trouble. It arises where there is a second conviction, and the punishment awarded for the last...