Stover v. Commonwealth.1

• Decision Date: 19 September 1895
• Citation: 92 Va. 780,22 S.E. 874
• Parties: STOVER. v. COMMONWEALTH.1
• Court: Virginia Supreme Court

22 S.E. 874

92 Va. 780

STOVER.

v.COMMONWEALTH.¹

Supreme Court of Appeals of Virginia.

Sept. 19, 1895.

Life Sentence on Third Conviction—Insanity —Effect of Conviction.

1. Under Code 1887, §§ 3905, 3906, providing for sentencing for life a convict who has been previously twice sentenced to the penitentiary, one cannot be so sentenced unless it appears that the previous offenses were made felonies in themselves, and not made so in the particular case because of prior convictions.

2. Where defendant's sanity is directly in issue, a conviction necessarily establishes his sanity, and the refusal to afterwards inquire into that fact is proper, nothing having transpired since the trial to raise the question.

Error to hustings court of Staunton; Charles Grattan, Judge.

Joshua H. Stover was convicted of larceny, and brings error. Reversed.

R. Lockhart Gray, for plaintiff in error. R. Taylor Scott, Atty. Gen., for the Commonwealth.

BUCHANAN, J. The accused was indicted for petit larceny in the hustings court of the city of Staunton. The indictment, in addition to the charge of petit larceny, contained the further allegations that the accused had, before the commission of the offense for which he was then indicted, been convicted of like offenses four times, and sentenced therefor; that after these four convictions, and prior to the commission of the offense charged in the indictment, he had been twice convicted and sentenced to confinement in the penitentiary in the United States for offenses of like character.

The jury found that he was guilty of the offense charged in the indictment, and that he had, before the commission of that offense, been twice convicted and sentenced for like offenses. They also found that he had twice before been convicted and sentenced to confinement in the penitentiary in the United States.

The trial court, being of opinion that the allegations of the indictment and the findings of the jury brought the ease within the provisions of section 3906 of the Code, sentenced the accused to confinement in the penitentiary for life. This action of the court is assigned as error.

Section 3906 of the Code provides that, "when any such convict shall have been twice before sentenced in the United States to confinement in the penitentiary, he shall be sentenced to be confined in the penitentiary for life." The preceding section of the Code, and the one to which we must look for the meaning of the words "such convict, " provides that, "where 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 before been 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." This section shows, we think, that the words "such convict, " as used in section 3906, refer to a person who has been twice before indicted, convicted, and sentenced to confinement ih the penitentiary in the United States for offenses which are penitentiary offenses in themselves when committed, and not made so because of repeated convictions and sentences for offenses which would otherwise be misdemeanors. In other words, we do not think that, under sections 3905 and 3906 of the Code, any person can be sentenced to confinement in the penitentiary for life upon conviction of an offense which is punishable by confinement in the penitentiary because he has been twice before convicted and sentenced to confinement in the penitentiary, unless it appears that these offenses were felonies in themselves, and not made felonies in the particular case because of the prior conviction of the party accused. This view is strengthened by the prior legislation upon this subject.

The law of 1796 (Code 1803, p. 355, c. 200) which provided, among other things, for the establishment of the penitentiary and the abolition of capital punishment (except for murder in the first degree), declared, in the twenty-fourth section, that "if any person convicted of any crime, which is now capital or a felony of death without benefit of clergy, shall commit any such offence a second time, and shall be legally convicted thereof, be shall be sentenced to undergo an imprisonment in said penitentiary house at hard labor for life, " etc.

In 1 Rev. Code, p. 619, c. 171, § 13, it is provided that "if any person guilty of an offence punishable by confinement in the...