(after stating the facts as above). The validity of the judgment now being enforced against the prisoner, and the statute, as construed by the state court, under which the judgment was pronounced, are assailed for many reasons. Some of these reasons only will be noticed, because, as to all the others, this court has neither the right nor the power to inquire into them.
It has been held over and over again that the writ of habeas corpus cannot be used as an appellate proceeding by which the irregularities or errors, real or supposed, of some other court, can be reviewed. Such matters can only be determined on appeal or by writ of error. And if there be no appeal, the rulings and the judgment of the trial court are a finality. And if the case is carried up, and C e judgment affirmed, the conclusions of the appellate court put the matters forever at rest. So that many of the contentions of counsel for the prisoner on the present hearing are given no consideration.
Although not pleaded, yet, as a fact, it can be stated that there was an appeal from the judgment in question to the Iowa Supreme Court. See State v. Gregory, go N. W. 1131. And the fact that tlie Iowa Supreme Court disposed of the case in an opinion of seven lines, and that tlie case was not even argued, in no manner can call for the judgment of a federal court on the questions which might have been argued, or which might have been discussed by the Iowa Supreme
But the learned counsel of the relator concedes that the statute of 1898 is within the Constitution, and therefore valid, but claims that it is only valid when it relates to other convictions committed after the enactment of the statute. But the authorities are against him, whatever might be urged if it were an original question. Kelly v. People, 115 Ill. 583, 4 N. E. 644, 56 Am. Rep. 184, is in a measure in point, although it does not go to the extent as claimed. The federal Constitutional provision was not relied on nor discussed in that case. But the case of Commonwealth v. Graves, 155 Mass. 163, 29 N. E. 579, 16 L. R. A. 256, is in point. In that case the offense pleaded as a prior conviction was committed prior to the enactment of the statute under which the convictions appealed from was enacted. And it was held that the statute, as thus construed, was not an ex post facto law.
Moore v. State of Missouri, 159 U. S. 673, 16 Sup. Ct. 179, 40 l. Ed. 301, by argument, at least, is in point. The indictment charged a felony as oí date May 26, [893. It also set forth a prior conviction of a felony. The date of the enactment of the statute tin question is not given, and therefore it will be assumed that it was prior to the commission of the first offense. The defendant, by reason of the crime charged and the former conviction, was sentenced to prison for life. So far as appears from the opinion, it was not urged that the statute was an ex post facto law. At all events, that question was not discussed in the opinion. The point decided was that the statute was not in conflict with the fourteenth amendment. Therefore it cannot be said that the case is an authority on the point now before this court. But the fact is that by argument, at least, much of what is said by the chief justice is persuasive on the question now presented, and is worthy of being considered in the case at bar.
It is always with satisfaction that quotations are made from Cooley’s Constitutional Limitations — one of the few really great text-books. That work (7th Ed.), at page 383, recites:
“And a law is not objectionable as an ex post facto which, in providing for the punishment of future offenses, authorizes the offender’s conduct in the past to be taken into the account, and the punishment to be graduated accordingly. Heavier penalties are often provided by law for a second or any subsequent offense than for the first, and it lias not been deemed objectionable that, in providing for such heavier penalties, the prior conviction authorized to be taken into the account may have taken place before the law was passed. In such case it is the second or subsequent offense that is punished, not the first; and the statute would be void if the offense to be actually punished under it had been committed before it had taken effect, even though it was after its passage.”
Prom these authorities it will be seen that a prisoner is convicted and sentenced for the one crime charged, and is not convicted on account of or for the prior crime or crimes. But he is convicted of the crime charged, and as belonging to a class of incorrigibles, for whom punishment does no good — a class into which the accused has voluntarily brought himself, and as against whom society has the right to be protected by placing him for the balance of his life where he cannot prey upon the people. In this case it was fortunate for Gregory that his sentenc e: wac for but 20 years, instead of for life, as it
A law is also ex- post facto, and therefore void, if it alters the rules of evidence, and allows less or different testimony than the law required at the time of the commission of the offense in order to convict the accused. It is therefore urged that the statute changes the rules of evidence, and is therefore void. But this point has already been covered.
The prisoner wa§ convicted for stealing the mule in Pottawattamie county in the year 1899, after the enactment of the statute, and in stealing the mule, thereby, by his own act, he brought himself into a class of thieves, as distinguished from those not yet classified by judicial records. As already observed, the statute in question covers cases wherein the accused .has been twice before convicted.
The indictment against Gregory recited that he had been three times before convicted, and the trial jury, by special verdicts, found the allegations to .be true. And because of such allegations and special verdicts, it is claimed that the judgment is void. This cannot be so. It is a familiar, and perhaps elementary, rule of criminal law and pleading that the greater includes the lesser, the same as in mathematics. If he had been three times before convicted, as, of course, he had been twice before convicted, and the indictment would have been good, and the special verdicts valid, if innumerable convictions had been pleaded and proven. Two prior convictions would bring the accused into the class, and twenty prior convictions would do no more. But all this was a question 'for the Pottawattamie District Court, subject only to review by the Iowa Supreme Court, and with which this-court has no concern..
The court holding, as it does, that the statute of. 1898 is valid, and • that it is not an ex post facto law, even when construed as authorizing the pleading of a conviction of an older date than the statute, to the end of bringing him into a class of criminals, the writ of habeas corpus should be, and ⅛,- denied, because section 755 of the Revised Statutes of the United States [U. S. Comp. St. 1901, p. 593] provides that the writ shall not issue if the petition, on its face, shows that the prisoner is not entitled thereto.