Shaw C. J.
delivered the opinion of the Court. The object of this information is to have the additional punishment awarded against the prisoner, either as a second or third comer, as the law applicable to the facts will warrant. The counsel for the prisoner contend, that by law he is not liable to either.
This proceeding by information is given by law as a sort of ancillary process by which the Court may award that punishment, which might and ought to have been awarded by the court before which the conviction was had, if the facts of the [498]*498former convictions, sentences, and discharges, bad been judicially brought to its notice. The question then is, what additional punishment if any, would the court have been authorized and required to award, on the conviction at Springfield, had these facts then been brought before it. Whatever may have been the construction of the statute of 1827, c. 118, § 19, which was in force in 1830, when the larcenies of which the prisoner was then' convicted, were committed, it had beer, modified at least, and its construction controlled, by the St. 1832, c. 73, and St. 1833, c. 85, before the conviction in 1834. For though subsequent acts could not increase the penalty upon an offence already committed, yet they might mitigate or diminish it; and such was the effect of these acts.
The first question is, whether upon the terms of the statute of 1833, the prisoner could be sentenced as on a third conviction, supposing that the act of 1832, which may deserve a separate consideration, had not been passed. The language of the statute is, “ such convict shall have been twice before convicted and sentenced to the state prison of this State, or of any other of the United States, in manner aforesaid, and twice discharged therefrom.” These words are clear and unambiguous. The convict must not only have been twice convicted and sentenced, but twice discharged, by pardon or otherwise. But an escape from prison is no discharge, as the defendant has learned by experience, by being compelled to work out the old sentence, when brought back. And such sentence and discharge must both have occurred before the commission of the new offence for which he is to be sentenced. The aggravation of such third offence consists in his having committed it after the salutary and reforming influence of two separate commitments to the penitentiary, and two discharges therefrom by pardon or execution of the whole sentence, had been tried in vain.
Then the question recurs, whether the prisoner, upon the statute of 1827, in connexion with the first provision in St. 1833, can be subjected to the additional punishment, as a person who had been once before convicted, sentenced and discharged. In considering this question, the terms second comer and third comer, may tend to mislead. These words are not used in the statute, nor words equivalent. The statutes award [499]*499an additional punishment to him who has been once before sentenced and discharged, and a still severer punishment to him who has twice before been sentenced. But it is not the less true, that a man has been once before sentenced and discharged, because he has been twice before sentenced. Suppose there were no provision whatever, for an increased additional punishment on third comers, but the law should stand, that any person who had before been convicted and sentenced, should be liable to an additional punishment, and a man should be convicted on several successive offences, would it not be true upon each offence after the second, that he had before been convicted and sentenced, and would not this bring him expressly within the provisions of the statute, and render him amenable on each conviction to the additional punishment ?
Nor does the fact, that the prisoner has once been sentenced to additional punishment as a second comer, affect this question. That was the sentence due by law, for the offence of 1818. He now stands for sentence for the offences of which he was convicted in 1834, and those only. To this the sentence for a prior and distinct offence is no bar.
It appears very clear from this view of the law, that but for the statute of 1832, the prisoner would clearly have been liable to the additional punishment provided by statute against a person, who had been once before convicted, sentenced and discharged. He was sentenced to two years hard labor, in the state prison in Vermont, and had been discharged ; and the offence of which he stood convicted and liable to sentence at Springfield in 1834, was such as subjected him to imprisonment for at least two years ; for he was so sentenced.
The law in force, when the crime was committed, in 1830, was St. 1827, c. 118, § 19. Any person convicted of any crime, the punishment whereof shall, by law, be confinement to hard labor for any term of years, who shall have been before sentenced to a like punishment by any court of this State, or any other of the United States, whether pardoned or not, shall be sentenced to solitary imprisonment, not exceeding thirty days, and to confinement to hard labor, not exceeding seven years, in addition to the punishment prescribed by law, &c. ; and it then provides for the case of a person, twice before so convicted and sentenced.
[500]*500Had the prisoner been arrested, tried and convicted, immediately after the offences committed in 1830, he would have been liable under this law to the additional punishment. Then came the statute of 1832, c. 73, by which it was provided, that no convict should be thereafter sentenced to additional punishment under the former act, unless he had at two several times been sentenced, in this, or some other State, for a period at each time more than one year, and had been twice discharged therefrom in due course of law.
Whether the legislature intended to go the full length of taking away all additional punishment, upon a second conviction, has been doubted, and some color is given to that doubt, by the change of the law the ensuing year. One great object of the statute undoubtedly was, to declare that by two convictions, should thereafter be understood, sentences and commitments at two distinct times and discharges therefrom by pardon or execution of the whole sentence, instead of two sentences at the same term of a court, according to a judicial construction which had been put upon the former acts. But whatever may have been the intent, the language is clear and explicit, that no convict should be sentenced, unless he had been twice com milled and discharged. The sentence and conviction of 1834, although for an offence previously committed, was after the passage of this act; the prisoner, though he had been twice sentenced, had not been twice discharged, and therefore was excepted by the act, from the additional punishment. For although' the law cannot create or increase penalties for past offences, it can take away or mitigate them. It was not in terms a repeal of the act, but it declared, that it should not operate in a particular way, in a particular case. At least it so far suspended the act, that the prisoner could not have been sentenced under the former whilst this remained in force.
But the year following, this act was itself repealed by St. 1833, c. 85, § 2, with a saving of all judgments then rendered, which saving does not affect the present case.
Free access — add to your briefcase to read the full text and ask questions with AI
Shaw C. J.
delivered the opinion of the Court. The object of this information is to have the additional punishment awarded against the prisoner, either as a second or third comer, as the law applicable to the facts will warrant. The counsel for the prisoner contend, that by law he is not liable to either.
This proceeding by information is given by law as a sort of ancillary process by which the Court may award that punishment, which might and ought to have been awarded by the court before which the conviction was had, if the facts of the [498]*498former convictions, sentences, and discharges, bad been judicially brought to its notice. The question then is, what additional punishment if any, would the court have been authorized and required to award, on the conviction at Springfield, had these facts then been brought before it. Whatever may have been the construction of the statute of 1827, c. 118, § 19, which was in force in 1830, when the larcenies of which the prisoner was then' convicted, were committed, it had beer, modified at least, and its construction controlled, by the St. 1832, c. 73, and St. 1833, c. 85, before the conviction in 1834. For though subsequent acts could not increase the penalty upon an offence already committed, yet they might mitigate or diminish it; and such was the effect of these acts.
The first question is, whether upon the terms of the statute of 1833, the prisoner could be sentenced as on a third conviction, supposing that the act of 1832, which may deserve a separate consideration, had not been passed. The language of the statute is, “ such convict shall have been twice before convicted and sentenced to the state prison of this State, or of any other of the United States, in manner aforesaid, and twice discharged therefrom.” These words are clear and unambiguous. The convict must not only have been twice convicted and sentenced, but twice discharged, by pardon or otherwise. But an escape from prison is no discharge, as the defendant has learned by experience, by being compelled to work out the old sentence, when brought back. And such sentence and discharge must both have occurred before the commission of the new offence for which he is to be sentenced. The aggravation of such third offence consists in his having committed it after the salutary and reforming influence of two separate commitments to the penitentiary, and two discharges therefrom by pardon or execution of the whole sentence, had been tried in vain.
Then the question recurs, whether the prisoner, upon the statute of 1827, in connexion with the first provision in St. 1833, can be subjected to the additional punishment, as a person who had been once before convicted, sentenced and discharged. In considering this question, the terms second comer and third comer, may tend to mislead. These words are not used in the statute, nor words equivalent. The statutes award [499]*499an additional punishment to him who has been once before sentenced and discharged, and a still severer punishment to him who has twice before been sentenced. But it is not the less true, that a man has been once before sentenced and discharged, because he has been twice before sentenced. Suppose there were no provision whatever, for an increased additional punishment on third comers, but the law should stand, that any person who had before been convicted and sentenced, should be liable to an additional punishment, and a man should be convicted on several successive offences, would it not be true upon each offence after the second, that he had before been convicted and sentenced, and would not this bring him expressly within the provisions of the statute, and render him amenable on each conviction to the additional punishment ?
Nor does the fact, that the prisoner has once been sentenced to additional punishment as a second comer, affect this question. That was the sentence due by law, for the offence of 1818. He now stands for sentence for the offences of which he was convicted in 1834, and those only. To this the sentence for a prior and distinct offence is no bar.
It appears very clear from this view of the law, that but for the statute of 1832, the prisoner would clearly have been liable to the additional punishment provided by statute against a person, who had been once before convicted, sentenced and discharged. He was sentenced to two years hard labor, in the state prison in Vermont, and had been discharged ; and the offence of which he stood convicted and liable to sentence at Springfield in 1834, was such as subjected him to imprisonment for at least two years ; for he was so sentenced.
The law in force, when the crime was committed, in 1830, was St. 1827, c. 118, § 19. Any person convicted of any crime, the punishment whereof shall, by law, be confinement to hard labor for any term of years, who shall have been before sentenced to a like punishment by any court of this State, or any other of the United States, whether pardoned or not, shall be sentenced to solitary imprisonment, not exceeding thirty days, and to confinement to hard labor, not exceeding seven years, in addition to the punishment prescribed by law, &c. ; and it then provides for the case of a person, twice before so convicted and sentenced.
[500]*500Had the prisoner been arrested, tried and convicted, immediately after the offences committed in 1830, he would have been liable under this law to the additional punishment. Then came the statute of 1832, c. 73, by which it was provided, that no convict should be thereafter sentenced to additional punishment under the former act, unless he had at two several times been sentenced, in this, or some other State, for a period at each time more than one year, and had been twice discharged therefrom in due course of law.
Whether the legislature intended to go the full length of taking away all additional punishment, upon a second conviction, has been doubted, and some color is given to that doubt, by the change of the law the ensuing year. One great object of the statute undoubtedly was, to declare that by two convictions, should thereafter be understood, sentences and commitments at two distinct times and discharges therefrom by pardon or execution of the whole sentence, instead of two sentences at the same term of a court, according to a judicial construction which had been put upon the former acts. But whatever may have been the intent, the language is clear and explicit, that no convict should be sentenced, unless he had been twice com milled and discharged. The sentence and conviction of 1834, although for an offence previously committed, was after the passage of this act; the prisoner, though he had been twice sentenced, had not been twice discharged, and therefore was excepted by the act, from the additional punishment. For although' the law cannot create or increase penalties for past offences, it can take away or mitigate them. It was not in terms a repeal of the act, but it declared, that it should not operate in a particular way, in a particular case. At least it so far suspended the act, that the prisoner could not have been sentenced under the former whilst this remained in force.
But the year following, this act was itself repealed by St. 1833, c. 85, § 2, with a saving of all judgments then rendered, which saving does not affect the present case.
This statute, in the first place, provides for additional ounishment, on a person who should thereafter be convicted of an offence punishable by confinement to hard labor in the state prison, for one year or more, instead of “ terms of years,” [501]*501which was the former language and which had been held to be at least two years. Ex parte Seymour, 14 Pick. 40. And this was to be imposed when the convict had before been sentenced to a like punishment in this or any of the United States, for a period not less than one year, and been discharged in due corarse of law by pardon or otherwise. It then went on to provide for a further additional punishment, when the convict had before been twice so sentenced and discharged.
It is obvious, that the additional punishment cannot be awarded upon this part of the law ; because it was enacted after the offence was committed. In one respect this provision was more penal than the former, because it rendered one liable on conviction of an offence, punishable by imprisonment for one year or more, whereas under the former the offence must have been punishable by imprisonment for a term of years, construed to mean at least two years. So by this later act, the former sentence may have been for one year only, whereas by the former it must have been for at least two years. But this is immaterial, for the reason already given ; that is, regarding this as a new enactment creating and imposing penalties, it cannot be applied to the prisoner’s case, because it was passed after the offence was committed, for which he stood liable to be sentenced in 1834.
The question therefore is precisely this, whether the act of 1833, by repealing the act of 1832, in legal effect annihilated it, and left the act of 1827 to its proper operation, in the same manner as if that of 1832 had not been passed.
Bv the statute of 1827, which was in force when the crime was committed, the prisoner was liable to the additional punishment. He stood convicted of an offence punishable by imprisonment for a term of years, and was actually sentenced to imprisonment for two years. He had before been sentenced in Vermont for a term of years, to wit, two years, and discharged in due course of law.
Jf the act of 1832 put an end to the operation of the act of 1827, as it regarded persons once before convicted, sentenced and discharged, and if the repeal of this repealing or qualifying act did not revive and restore the act of 1827, and leave it in force with all its penal consequences, then the prisoner was not liable [502]*502in 1834 to be sentenced to the additional punishment, though he had been once before convicted, sentenced and discharged.
But if the effect of the statute of 1833, was to repeal the repealing act, to put an end to the suspension of the act of 1827, and leave it in force with all its penal consequences, as if the act of 1832 had not been passed, then, in 1834, the prisoner was liable to the additional punishment, on his conviction at Springfield for offences committed in 1830 ; and the additional punishment not having been there awarded, he is now liable to such additional punishment upon this information.
The general rule upon this subject is, that by the repeal of a repealing statute, the former statute is revived, without any formal words for that purpose. 1 Bl. Comm. 90 ; 4 Inst. 326 ; Bac. Abr. tit. Statute, D.
But the precise point, upon these statutes, appears already to have come under the consideration of the Court and been decided. In the case of Commonwealth v. Getchell, 16 Pick. 452, it was decided, that the act of 1832 was a suspension of the operation of the act of 1827 in regard to additional punishment in cases of second convictions, and that this suspension was terminated by the act of 1833, and that thereby the act of 1827 was continued in force; that as a necessary consequence, if the offence with which the prisoner stood charged had been committed, or if the conviction had taken place, after the act of 1832 and before that of 1833, the prisoner would not have been liable to the additional punishment, but both having taken place before the act of 1832, and the information having been filed after the act of 1833, by which that of 1827 was reinstated and continued in force, the prisoner was liable thereon to the additional punishment.
That is precisely the present case, with one variation not affecting the principle of the decision. In this case, the offence was committed before the act of 1832, and the conviction thereon was had after the act of 1833 ; and so the offence was not committed, nor was the conviction had, whilst the act of 1832 was in force. The Court are all of opinion, that the prisoner is liable to an additional punishment not exceeding seven years, upon that part of the St. 1827, c. 118, § 19, which imposes such punishment upon a convict, who has been [503]*503once Defore sentenced to confinement to hard labor, for a term of years, in the state prison of another State-