in giving the opinion of the Court, said in substance, that the return ought to have stated the time when the prisoner was committed under the second sentence, and the time when that sentence would expire. The prisoner is now without doubt held under the additional sentence.
Thеre can be no question, but that if the statute of 1817, c. 176, were ex post facto, it would be the duty of the Court to hold it to be invalid. It would not be a law. It is contrary tо the fundamental principles of a free government, that a law should operate retrospectively, so as to makе an act criminal, which, at the time when it was done, was innocent; and if the legislature should pass such a law, the Court
The general nature of ex post facto laws is, to make acts criminal, which, at the time when they were done, were innocent, and which had not been made an offence by any previous law.
It is contended that the statute in question is of this nature. It is said, (and this is the only way in whiсh the statute can be supposed to be ex post facto,) that the party is punished under it for his first offence. If so, the statute is undoubtedly ex post facto ; for adding a new рunishment, or increasing the old one for that offence, would be ex post facto. A party ought to know, at the time of committing the offence, the whоle extent of the punishment; for it may sometimes be a matter of calculation, whether he will commit the offence, considеring the severity of the punishment.
But if this is an additional punishment to an offence committed after the passing of the statute, to be inflicted by the court upon coming to the knowledge of certain facts, the statute is not ex post facto. As if a law were made, that a person under a certain age committing a crime should receive a mild punishment, and that a person over that age committing the same сrime should be punished severely ; and further, that if it should be found, after the mild punishment had been awarded, that the culprit was over the age prescribed, then the severe punishment should be inflicted, this would not be ex post facto; because the extent of punishment 'was declared befоre the offence was committed.
On recurring to St. 1804, c. 143, § 3, it will be found to contain a provision similar in effect to the statute in question ; and its being acquiesced in for twenty years furnishes strong evidence of its being correct in principle.
The statute alluded to provides, that if any person having been before convicted of larceny, shall afterwards commit another larceny, he shall be punished more severely than if he had not previously committed the like offence. The punishment is еnhanced from the character of the culprit. So the same statute provides that if a person shall be con victed аt the same term of three distinct offences, he shall receive a more severe punishment. The same objection would аpply in these cases, as much as in the one under consideration, that the culprit was punished because he had committed prior offences, and that he was punished anew for those offences. But in our view the punishment is for the last offence committed, and it is rendered more severe in consequence of the situation into which the party had previously brought himself.
In regard to the objection #made to the process, this is not an information of an offence for which a trial is to be had, but of a fact, nаmely, that the prisoner has already been convicted of an offence ; and this fact must appear, either by his own cоnfession, or by verdict of a jury, or otherwise according to law, before he can be sentenced to the additional punishmеnt. Is he to be sentenced for an offence distinct from the one for which he has been tried upon an indictment ? We apprеhend not; but the only question is, whether he is such a person as ought to have been sentenced, on his last conviction, to additionаl punishment,
It is said, that at common law both offences should be tated in the same count.*
.Vi ther the legislature had not a right to prescribe a differ--'in mode ; аnd we think they had.
Prisoner remanded.
Another case upon this statute of 1817 came before the court in July 1825, in Suffolk. S. D. Parker presented the petition of William Riley, а convict in the state prison, who had been sentenced under the statute to an additional punishment, stating that Riley’s last offence had been committed before the statute was passed, and praying for a writ of error or a writ of habeas corpus. The Court granted a habeas corpus, and upon the return of the writ the Solicitor General suggested, that according to St. 1784, c. 72, § 1, the prisoner was not entitled to relief upon a habeas corpus, but that his proper remedy was by writ of error.
The Chief Justice said, the next day, that a majority of the Court were of opinion that the prisoner could not be relieved upon a habeas corpus, as the St. 1784, c. 72, excludes from the benefit of this writ, “ persons convict or in execution by legal process, criminal or civil.” Wе cannot examine, upon this summary process, whether the additional punishment was rightly awarded or not. The proper mode оf relief is by a writ of error.
The prisoner accordingly sued out a writ of error imme
Notes
See Strong v. The State, 1 Blackford's (Ind.) R. 193. An ex post facto law is one which renders an act punishable in a manner, in which it wаs not punishable, when it was committed. Fletcher v. Peck, 6 Crunch, 138, (2 Peters’s Cond. R. 322;) 3 Story on the Constitution, 212, 213. A statute erecting
If the indictment recites the former conviction the court must award the full measure of punishment in the first instance. No information lies for the residue, after the former conviction has been thus judicially before the court. See Commonwealth v. Phillips,
See Ex parte Tobias Watkins,