State v. Graham.

• Decision Date: 22 November 1910
• Citation: 68 W.Va. 248
• Parties: State v. Graham.
• Court: West Virginia Supreme Court

68 W.Va. 248

State

v.Graham.

Supreme Court of Appeals of West Virginia.

Submitted June 11, 1910.

Decided November 22, 1910.

1. Criminal Law Constitutional LawHabitual Criminals.

The provisions of Code 1906, chapter 165, sections 1 to 5 inclusive, pursuant to which, by an information in the circuit court of the county in which the penitentiary is situated, there may be imposed the additional sentence provided by law upon a convict who once or twice before has been convicted and sentenced to a penitentiary, are not violative of any constitutional guaranty.

2. Same Indictment and Information Necessity Former Jeop-

ardy.

By proceeding's under the statute mentioned, the convict is not held to answer for a crime so as to require presentment or indictment of a grand jury, nor is he thereby twice put in jeopardy for an offense.

Error to Circuit Court, Marshall County. John H. Graham was prosecuted under Code 1906, chapter 165, and on conviction brings error.

Affirmed.

Everett F. Moore and D. B. Evans, for plaintiff in error. William G. Conley, Attorney General, for the State.

Robinson, President:

John H. Graham, alias John H. Ratcliff, alias J. II. Gray, for the third time a, convict in the penitentiary at Moundsville, was proceeded against by information in the circuit court of Marshall county pursuant to the provisions of Code 1906, chapter 165, sections 1 to 5 inclusive. For clear understanding it seems necessary to recite this statute:

"1. All criminal proceedings against convicts in the penitentiary shall be in the circuit court of the county of Marshall.

"2. When a prisoner convicted of an offence, and sentenced to confinement therefor in the penitentiary, is received, therein, if he was before sentenced to a like punishment, and the record of his conviction does not show that he has been sentenced under the twenty-third or twenty-fourth section of chapter one hundred and fifty-two, the superintendent of the penitentiary shall give information thereof, without delay, to the said circuit court of the county of Marshall, whether it be alleged or not in the indictment on which he was so convicted, that he had been before sentenced to a like punishment.

"3. The said court shall cause the convict to be brought before it. and upon an. information filed, setting forth the several records of conviction, and alleging the identity of the prisoner with the person named in each, shall require the convict named to say whether he is the same person or not.

"4. If he say he is not, or remain silent, his plea, or the fact of his silence, shall be entered of record, and a jury shall be impaneled to inquire whether the convict is the same person mentioned in the several records.

"5. If the jury find that he is not the same person, he shall be remanded to the penitentiary; but if they find that he is the same person, or if he acknowledge in open court, after being duly cautioned, that he is the same person, the court shall sentence him to such further confinement as is prescribed by chapter one hundred and fifty-two, on a second or third conviction, as the case may be."

The information averred that Graham, in 1898, was convicted and sentenced to the penitentiary for two years, in the circuit court of Pocahontas county; that, in 1901, for a subsequent offense, he was convicted and sentenced to the penitentiary for ten years, in the circuit court of Mineral county; that he was paroled from the penitentiary while serving the sentence last mentioned; that, in 1907, for a third offense, he was convicted and sentenced to the penitentiary for five years, in the criminal court of Wood county; that the indictment under which he was convicted in Mineral county set forth the former conviction and sentence in Pocahontas county; and that the indictment under which, he was convicted in Wood county did not set forth or show either of the former convictions or sentences. The information, filed by the prosecuting attorney of Marshall county, was specific and direct in its averments of the facts and records of the several convictions and sentences. It prayed that Graham be proceeded against and made to answer the State in the premises. He was brought before the court in the custody of a guard of the penitentiary. He appeared to the information filed against him and moved to quash the same. The motion to quash was overruled; and thereupon for plea he said, that he was not the same person named in the information as having been twice before convicted and sentenced to the penitentiary. Issue'was joined on this plea, and the same was tried by a jury. By the verdict it was found that the defendant Graham was the same person who formerly had been convicted and sentenced, as alleged, in the counties of Pocahontas and Mineral. Motion to set aside the verdict and grant a new trial and motion in arrest of judgment were overruled. Thereupon the court sentenced Graham to the penitentiary for life, that being the sentence provided for convicts who have twice before been sentenced in the United States to confinement in a penitentiary. Code 1906, chapter 152, section 25.

By this writ of error it is sought, upon many grounds, to overthrow the proceedings and sentence. It is submitted that the information should have been quashed because it was not verified. This objection was not good. A prosecuting officer need not swear to an information which he officially tenders, unless the statute so directs, since he acts under his official oath. 1 Bishop Crim. Pro., section 713. The exceptions which relate to the trial itself, involving the aclmissibility and weight of evidence, are by no means well taken. The identity of Graham as the person formerly convicted and sentenced was clearly and regularly established, if there was warrant in law for such proceedings as were had. Nor is there anything in the point that the criminal court of Wood county did not have jurisdiction of the trial of a paroled convict for an offense, committed by him in that county. But a question of merit is presented: Is the statute upon which the proceedings were founded constitutional and valid?

The statute is not contrary to any constitutional provision. It is a valid act. It is not a violation of the provision that one shall not be held to answer for treason, felony, or other crime not cognizable by a justice, unless on presentment or indictment of a grand jury. The proceedings for increased sentence are not a holding to answer for the crime to which that...