Herndon v. Commonwealth

• Citation: 105 Ky. 197,48 S.W. 989
• Parties: HERNDON v. COMMONWEALTH. [1]
• Decision Date: 06 January 1899
• Court: Court of Appeals of Kentucky

48 S.W. 989

105 Ky. 197

HERNDON v. COMMONWEALTH. ^[1]

Court of Appeals of Kentucky.

January 6, 1899

Appeal from circuit court, Fayette county.

"To be officially reported."

Ben Herndon was convicted of the crime of housebreaking, and he appeals. Affirmed.

Hobbs &amp Farmer and George Denny, Jr., for appellant.

W. S Taylor and M. H. Thatcher, for the Commonwealth.

HOBSON J.

The appellant, Ben Herndon, was tried and convicted in the Fayette circuit court on June 21, 1893, of the crime of housebreaking, and sentenced to three years in the penitentiary. On July 2, 1895, he was pardoned by the governor for this crime. Afterwards, and at the April term of the same court, 1897, he was tried and convicted of the crime of maliciously shooting John Jackson, and his punishment fixed at one year in the penitentiary. After all this, at the September term, 1898, he was again indicted in the Fayette circuit court of the crime of maliciously shooting and wounding Dabney Carr, this indictment setting up his two previous convictions of felony. He was found guilty, and his punishment, pursuant to section 1130, Ky. St., was fixed at confinement in the penitentiary for life. From this judgment he appeals to this court, insisting that the statute referred to is unconstitutional.

The ground upon which the validity of the statute is assailed is that the increased punishment, by reason of the former convictions, is, in effect, a punishment a second time for offenses for which he has already been convicted and punished. But this is, in our judgment, not the effect of the statute. The increased punishment for a second or third conviction is simply the punishment for that offense, and the legislature may well increase the punishment in such cases to prevent a repetition of offenses. This has been so often held that we do not regard it longer an open question. Taylor v. Com., 3 Ky. Law Rep. 783; Boggs v. Same (Ky.) 5 S. W. 307; Chenowith v. Same (Ky.) 12 S.W. 585; Combs v. Same (Ky.) 20 S.W. 268; 1 Bish. Cr. Law, §§ 959, 965.

It is also insisted that appellant is not liable for the increased penalty imposed by the statute on a third conviction of felony by reason of the fact that he was pardoned by the governor of the crime of which he was first convicted, and an instruction to this effect was asked and refused on the trial. This question was presented to this court in the case of Mount v. Com., 2 Duv. 93, where it was held that the pardon had not this effect. The court said: "The pardon relieved the convict of the entire penalty incurred by the offense pardoned, and nothing else or more. It neither did nor could relieve from any penal consequence resulting from a different offense, committed after the pardon, and never pardoned. The increased punishment prescribed by the statute for the subsequent offense was no part of the penal consequences of the first offense, but applied exclusively to the last, as aggravated by its repetition of the same crime. The legislature, as required by justice and policy, ought to have provided a severer punishment for repeated than for only one crime; and whether it had done so, by duplicating for a second offense the punishment of the first, or by any other measure of augmentation, cannot be material. In any aspect the augmented punishment is for the last, and not at all for the first, offense; and, of course, a pardon of the first could in no way or degree operate as a pardon of the last offense, or remission of any portion of the punishment denounced for the...