Rand v. Commonwealth

• Decision Date: 17 November 1852
• Citation: 50 Va. 738
• Parties: RAND v. COMMONWEALTH.
• Court: Virginia Supreme Court

50 Va. 738

RAND v. COMMONWEALTH.

Supreme Court of Appeals of Virginia.

November 17, 1852

1. The act, Code of 1849, ch. 199, § 25, p. 752, applies to the case of a prisoner on trial who had been convicted and sentenced previous to the passage of this act.^[a1]

2. The act as applicable to such a case, is not ex post facto and unconstitutional.

3. The act does not apply to the case of a conviction for an offence committed after commission of that for which the prisoner is on trial.

4. The indictment must set out the time and place of the first conviction, and must show that the previous conviction was for an offence committed before the commission of that for which the prisoner is on trial.

5. The act, Code of 1849, ch. 208, § 34, p. 778, authorizes a prisoner who is tried on an indictment containing several counts, some of which are faulty, to move the court to instruct the jury to disregard the faulty counts. A motion to exclude evidence which could only be applicable to the faulty count, is in effect a motion to disregard that count.

6. Evidence having been improperly admitted to prove a former conviction, the whole judgment must be reversed, and a new trial awarded.

7. QUÆ RE: Whether each count of the indictment must set out the former conviction, or whether one allegation of that fact may be made, applicable to all the counts.

8. QUÆ RE: When the evidence of a former conviction should be submited to the jury.

John W Rand was indicted for burglary and larceny in the Circuit court of Norfolk county. The indictment contained four counts: And at the conclusion of the second count there was the following: " And the jurors aforesaid, upon their oaths aforesaid, do further present, that the said John W Rand, late of the commonwealth of Massachusetts, one of the United States, hath been convicted of a felony by him committed in the said commonwealth of Massachusetts, one of the United States, and therefor sentenced to confinement in the penitentiary of the commonwealth of Massachusetts, one of the United States."

On the trial of the prisoner, after the prosecution had introduced evidence for the purpose of sustaining the charge of burglary and larceny, a witness was introduced and sworn, and two records of a conviction for felony in Massachusetts were exhibited to him, and he was asked if the prisoner was the same person named in the said records, and he replied that he was: And then the prosecution proposed to read the said records in evidence to the jury; whereupon the prisoner by his counsel, moved the court to exclude the said evidence and records; but the court overruled the motion and admitted the evidence, and the prisoner excepted.

The jury found the prisoner guilty and fixed the term of his imprisonment in the penitentiary at five years; and they found further that he had been before convicted of a felony and sentenced to confinement in the penitentiary in Massachusetts. And the court sentenced the prisoner to be imprisoned in the penitentiary of this commonwealth for the term of five years as fixed by the jury; and to an additional term of five years. And the judge certified that the court stated to the jury that the record from the state of Massachusetts, referred to in the indictment, was admitted and to be received as evidence by the jury for the sole purpose of showing that the prisoner had been before convicted of an offence and sentenced to confinement therefor in the penitentiary to a like punishment in the state of Massachusetts, as alleged in the said indictment. The prisoner thereupon applied to this court for a writ of error.

R G. Scott, for the prisoner.

The Attorney General, for the commonwealth.

OPINION

DANIEL, J.

In addition to the four regular counts in the indictment for burglary and larceny, there is also the further charge or allegation that the prisoner " hath been convicted of a felony by him committed in the commonwealth of Massachusetts, one of the United States, and therefor sentenced to confinement in the penitentiary of the said commonwealth of Massachusetts, one of the United States."

On the trial, the prisoner having been regularly arraigned, and having pleaded not guilty, the prosecution, after it had introduced evidence for the purpose of sustaining the allegations contained in the indictment, then exhibited two records, one of which showed that John W. Rand had, at the November term of the Municipal court of the city of Boston in 1843, been convicted of larceny, and sentenced therefor to confinement in the penitentiary of the state of Massachusetts for the space of four years; and the other, that on an appeal before the Supreme judicial court, the said conviction and sentence had been regularly affirmed in the year 1844; and also introduced a witness, by whom it offered to prove that the prisoner was the same person named in the said records. To the introduction of this evidence the prisoner objected; but the court overruled the objection, and permitted the said records and proof of the identity of the prisoner to go to the jury; and the prisoner excepted.

The questions to be decided here all turn on the propriety or impropriety of permitting the introduction of this evidence.

From an early period in the history of our penal code, indeed from the date of the establishment of the penitentiary, it has been the policy of our law to visit with increased punishment offenders who shall be convicted and sentenced for felonies committed, after having been once or oftener convicted and sentenced for like offences. Previously, however, to the revision of the criminal laws in 1848, the provisions for increased or additional punishment for second offences or convictions, only reached those cases where the accused had been before sentenced by some court in this state. In 1848 the law in this respect was changed, and the additional punishment prescribed for the second conviction made to extend to cases where the first conviction had been made in a court of any other of the United States. The law of 1848, with some slight change in its phraseology, is embodied in the code of 1849, and is to be found in the 25th section of chapter 199. It declares that " when any person is convicted of an offence, and sentenced to confinement therefor in the penitentiary, and it is alleged in the indictment on which he is convicted, and admitted, or by the jury found, that he had been before sentenced in the United States to a like punishment, he shall be sentenced to be confined five years, in addition to the time to which he is or would be otherwise sentenced." The exhibition of the charge, that the prisoner had been before convicted and sentenced in Massachusetts, and the offer to sustain the charge by proof, were doubtless designed on the part of the prosecution to be in pursuance of this law.

The effort on the part of the prisoner's counsel to sustain his exception to the course of the court in regard to this portion of the prosecution, is placed mainly on three grounds:

First. That it is only by construction that the law can be made to reach a case like this; and that to give to it such construction would be to give to it a retrospective operation, which is inadmissible.

Secondly. That if the law, in plain and unequivocal terms embraced the case, it would be an ex post facto law, inasmuch as it appears that the first conviction was had in Massachusetts in the year 1843, and the law under which it is sought to visit the prisoner with the additional punishment, was not passed till the year 1848; and therefore that in either of these aspects the testimony offered would be illegal, even though the charge were formally made in compliance with the construction above mentioned, or in accordance with the plain and obvious requirements of the law.

Thirdly. That the allegation was in no aspect well made, but was altogether defective and faulty, and that the court, on the motion of the prisoner to reject the evidence, should have excluded it, and instructed the jury wholly to disregard said allegation.

As to the first ground, no resort to construction is necessary to show that the terms of the law embrace all cases of a second conviction, whether the first conviction had been had since, or before, the passage of the law. Violence would have to be done to the plain and obvious import of the words employed, in order to restrict the operation of the law to the cases where the first conviction had taken place since its enactment. If a reasonable doubt arose out of the language used in the statute, whether the law contemplated the cases in which the first conviction was had before its passage, the charitable rules which prevail in the construction of such laws would perhaps require us to restrict its operation to those cases alone where the first conviction had taken place since the passage of the law.

But no such doubt arises. To give the law the restricted operation contended for by the prisoner's counsel, would therefore be, not to construe the statute, but to deny its authority and set at naught its plain requirements. This it is not competent for us to do, unless satisfied that the second ground of objection taken is tenable, to wit, that the statute, so far as it is applicable to the case before us, is unconstitutional as being an ex post facto law.

Is it obnoxious to such objection? The first conviction, as has been before stated, was had in 1843, and the second offence is alleged and found to have been committed in 1852; whilst the law under consideration was passed in 1848 and re-enacted in 1849. Is the increased punishment prescribed by the statute and to which the prisoner has been sentenced, one which, in legal contemplation, is to be regarded as attached to the first or to the...